UST Golden Notes 2011

Legal Ethics - practice of law
Q: What constitutes practice of law?
L E G A L E T H I C S.
Q: What is legal ethics? A: It is a branch of moral science which treats of the duties which an attorney owes to the court, to his client, to his colleagues in the profession and to the public as embodied in the Constitution, Rules of Court, the Code of Professional Responsibilities, Canons of Professional Ethics, jurisprudence, moral laws and special laws. (Justice George Malcolm) (1993, 1996 Bar Question) Q: What are the sources of ethical standards in the Philippine judiciary? A: 1. Primary a. Bar i. Canons of Professional Ethics ii. Code of Professional Responsibility b. Bench i. Canons of Judicial Ethics ii. Code of Judicial Ethics iii. New Code of Judicial Conduct for the Philippine Judiciary Other personnel Code of Conduct for Court Personnel A practicing lawyer is a member of the Philippine Bar who appears for and in behalf of parties in courts of law and quasi-judicial agencies. Q: What does the term practicing lawyer include? A: It includes: 1. Government employees and incumbent elective officials not allowed by law to practice. Lawyers who by law are not allowed to appear in court; Supervising lawyers of students enrolled in law student practice in duly accredited legal clinics of law schools and lawyers of Non-Government Organizations (NGOs) and Peoples Organizations (POs) who by the nature of their work already render free legal aid to indigent and pauper litigants; and Lawyers not covered under subparagraphs (i) to (iii) (of Sec. 4, B.M. 2012) including those who are employees in the private sector but do not appear for and in behalf of parties in courts of law and quasijudicial agencies. A: Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training, and experience. To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill. (Cayetano v. Monsod, G.R. No. 100113, Sept. 3, 1991) Q: Who is a practicing lawyer? A: A practicing lawyer is one engaged in the practice of law, who by license is an officer of the court and is empowered to appear, prosecute and defend a clients cause.
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Secondary a. Decisions/resolution of the Supreme Court b. Supreme Court Circulars c. Order/resolution of other courts d. IBP Issuances
Q: What is legal is moral. State your comment on the correctness or incorrectness of this proposition. A: The statement is not necessarily correct. There are several acts of a lawyer, which may be legal but not necessarily moral. This is precisely the purpose of the legal ethics, which governs the ethical and moral behavior of a lawyer. (1993 Bar Question)
4.
Q: Differentiate bar from bench. A: Bar refers to the whole body of attorneys and counselors, collectively, the members of the legal profession
I. PRACTICE OF LAW
Bench refers to the whole body of judges.
A. CONCEPTS
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST Golden Notes 2011

Q: What is a bar association? A: It is an association of the members of the legal profession like the IBP where membership is integrated or compulsory. Q: Who is an amicus curiae? A: An amicus curiae is an experienced and impartial attorney invited by the court to appear and help in the disposition of the issues submitted to it. It implies friendly intervention of counsel to call the attention of the court to some matters of law or facts which might otherwise escape its notice and in regard to which it might be wrong. Amicus curiae appears in court not to represent any particular party but only to assist the court. (plural: Amici Curiae) (1993, 1996, 1998 Bar Question) Q: What is amicus curiae par excellence? A: It is a bar association who appears in court as amicus curiae or a friend of the court. It acts merely as a consultant to guide the court in a doubtful question or issue pending before it. Q: What is assumpsit? A: Literally means he has undertaken. It is an action for the recovery of damages by reason of the breach or non performance of a simple contract, either express or implied, or whether made orally or in writing. Assumpsit was the word always used in pleadings by the plaintiff to set forth the defendants undertaking or promise. (2006 Bar Question)
Note: Claims in action of assumpsit were ordinarily divided into (a) common or indebitatus assumpsit, brought usually on an implied promise, and (b) special assumpsit, founded on an express promise.
appointing him. His authority is provided in a special power of attorney or general power of attorney or letter of attorney. He is not necessarily a lawyer. Q: Who is an attorney of record? A: Attorney of record is an attorney whose name is entered in the records of an action or suit as the lawyer of a designated party thereto. Q: Who is a counsel/attorney de officio? A: A counsel/attorney de officio is an attorney appointed by the court to defend an indigent defendant in a criminal action. (1998 Bar Question)
Note: In a criminal action, if the defendant appears without an attorney, he must be informed by the court that it is his right to have an attorney before being arraigned and must be asked if he desires the aid of an attorney. If he desires and is unable to employ an attorney, the court must assign a counsel de officio to defend him. He is also designated as counsel of indigent litigants. The appointment of a counsel de officio in that instance is a matter of right on the part of the defendant. On appeal in criminal cases, the appellate court must also appoint a counsel de officio if, as shown by the certificate of the clerk of court of the trial court, a defendant is confined in prison or without means to employ an attorney or desires to be defended de officio. (Secs. 6-8, Rule 116 and Sec. 13, Rule 122)
Q: Who is a counsel de parte? A: Private counsel of a party, secured by him, without intervention from the government. Q: Who is an in-house or house counsel? A: He is one who acts as attorney for business though carried as an employee of that business and not as an independent lawyer. Q: Who is a lead counsel? A: A lead counsel is a lawyer on either side of a litigated action who is charged with the principal management and direction of a partys case, as distinguished from his juniors or subordinates. Q: Who is an Of Counsel? A: He is an experienced lawyer, usually a retired member of the judiciary, employed by law firms as consultants.
Q: Who is an attorney ad hoc? A: Attorney ad hoc is a person appointed by the court to defend an absentee defendant in the suit in which the appointment was made. Q: Distinguish attorney-at-law from attorney in Fact. A: Attorney-at-law is that class of persons who are licensed officers of the court empowered to appear, prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities are developed by law as consequence, while an attorney in fact is simply an agent whose authority is strictly limited by the instrument
LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY

Q: What is pro se? A: It is an appearance by a lawyer in his own behalf. (1995 Bar Question) Q: Who is a trial lawyer? A: A trial lawyer is one who personally handles cases in court, administrative agencies or boards and engages in actual trial work, either for the prosecution or for the defense of cases of clients. (2006 Bar Question) Q: Who is a public prosecutor? A: He is a quasi-judicial officer and as such, he should seek equal and impartial justice. He should be as much concerned with seeing that no innocent man suffers as in seeing that no guilty man escapes. His primary duty is not to convict but to see to it that justice is done. He should see to it that the accused is given fair and partial trial and not deprived of any of his statutory or constitutional rights. Consequently, the suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action. He should recommend the acquittal of the accused whose conviction is on appeal, if he finds no legal basis to sustain the conviction. Q: Who is a private prosecutor? A: A private prosecutor may intervene in the prosecution of a criminal action when the offended party is entitled to indemnity and has not waived expressly, reserved or instituted the civil action for damages. All criminal actions commenced by complaint or information shall be prosecuted under the direction and control of the prosecutor. In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the Court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to the end of the trial even in the absence of the public prosecutor, unless the authority is revoked or otherwise withdrawn (Sec. 5 Rule 110 RRC as amended, May 1, 2002). Q: Who is a client? A: A client is one who engages the services of a A: Law is a profession and not a trade because its basic ideal is to render public service and secure justice for those who seek its aid. The gaining of a livelihood is only a secondary consideration. (2006 Bar Question)
Note: But while the practice of law is a privilege, a lawyer cannot be prevented from practicing law except for valid reasons, the practice of law not being a matter or States grace of favor. He holds office during good behavior and can only be deprived of it for misconduct ascertained and declared by judgment of the Supreme Court after opportunity to be heard has been afforded him.
lawyer for legal advice for purposes of prosecuting or defending a suit in behalf and usually for a fee. Q: What is the nature of the practice of law? A: The practice of law is not a natural property or constitutional right but a mere privilege. It is not a right granted to anyone who demands it but a privilege to be extended or withheld in the exercise of sound judicial discretion. It is in the nature of a franchise conferred only for merit which must be earned by hard study, learning and good conduct. It is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness. Those standards are neither dispensed with nor lowered after admission. The attorneys continued enjoyment of the privilege conferred depends upon his complying with the ethics and rules of the profession. Q: Can the practice of law be a business? A: No. The practice of law is a profession and not a business as it is an essential part in the administration of justice, a profession in pursuit of which pecuniary reward is considered merely incidental; it is a pursuit of learned art in the interest of public service. Q: Why is law a profession and not a trade?
Q: May a corporation practice law? A: No. It is well-settled rule that a corporation cannot engage in the practice of law. It may, however, hire an attorney to attend to and conduct its own legal business or affairs. But it cannot practice law directly or indirectly by employing a lawyer to practice for it or to appear for others for its benefit because of the following reasons:

1. Nature of the privilege and on the confidential and trust relation between attorney and client. A corporation cannot perform the conditions required for membership in the Bar, such as the possession of good moral character and other special disqualifications, the taking of an oath and becoming an officer of the court, subject to its discipline, suspension or removal. The relation of trust and confidence cannot arise where the attorney is employed by a corporation to practice for it, his employer and him owing, at best, a secondary and divided loyalty to the clientele of his corporate employer. The intervention of the corporation is destructive of that confidential and trust relation and is obnoxious to the law. B. QUALIFICATIONS Q: Who may practice law? A: Any person heretofore duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of the rule, and who is in good and regular standing, is entitled to practice law. [Sec. 1, Rule 138, Revised Rules of Court (RRC)] Q: A criminal case was filed against Atty. Javellana which resulted to his arrest and temporary detention at the house of the clerk of court where his case was pending. Despite his detention, Atty. Javellana continues with his normal activities including his practice of law, in appearing as counsel for certain cases. Can Atty. Javellana still engage in the practice of law despite his arrest and detention? A: As a detention prisoner, Javellana is not allowed to practice his profession as a necessary consequence of his status as a detention prisoner. The trial court's order was clear that Javellana "is not to be allowed liberty to roam around but is to be held as a detention prisoner." The prohibition to practice law referred to all other cases, except in cases where Javellana would appear in court to defend himself. (Pro Se) All prisoners whether under preventive detention or serving final sentence can not practice their profession nor engage in any business or occupation, or hold office, elective or appointive, while in detention. This is a necessary consequence of arrest and detention. (People v. Maceda, G.R. Nos. 89591-96, Jan. 24, 2000) Q: Is a clerk of court allowed to practice law? A: No, except if it is an isolated practice. Q: What are the requisites if a clerk of court wishes to practice law? A: 1. 2. Written permission which must be approved by the Supreme Court; and Approved leave of absence with justifiable reasons.
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3.
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Q: State the essential criteria in determining engagement in the practice of law. A: C A H A 1. Compensation implies that one must have presented himself to be in the active practice and that his professional services are available to the public for compensation, as a source of livelihood or in consideration of his said services. Application of law, legal principle, practice or procedure which calls for legal knowledge, training and experience; Habituality implies customary or habitually holding oneself out to the public as a lawyer. Practice of law is more than an isolated appearance for it consists in frequent or customary action; and Attorney-Client relationship - engaging in the practice of law presupposes the existence of a lawyer-client relationship. Thus, activities like teaching of law or writing law books or articles which involve no attorney-client relationship do not qualify a lawyer as being engaged in the practice of his profession as a lawyer.
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Note: Notarial act is practice of law. Notarization of a single document is not an isolated transaction therefore a permit must be secured in order to prevent the violation of law.

Q: Atty. Ladaga, a Clerk of Court, appeared as counsel for and in behalf of his cousin in a criminal case for falsification of public documents before the METC of Quezon City. The appearance of Atty. Ladaga in said case was without the previous permission of the Court. Did Atty. Ladaga violate the Code of Conduct and Ethical Standards for Public Officials and Employees by engaging in private practice? A: Yes. "Private practice" of a profession, which is prohibited, does not pertain to an isolated court appearance; rather, it contemplates a succession of acts of the same nature habitually or customarily holding one's self to the public as a lawyer. It is true that he filed leave applications corresponding to the dates he appeared in court but he failed to obtain a prior permission from the head of the Department. (Oca v. Atty. Ladaga, A.M. No. P-99-1287, Jan. 26, 2001) Q: What branch of the government has the power to admit persons in the practice of law? A: The Constitution vests the power of control and regulation in the Supreme Court. The constitutional power to admit candidates to the legal profession is a judicial function and involves the exercise of discretion. Petition to that end is filed with the Supreme Court as are other proceedings invoking judicial function. (In Re: Almacen, G.R. No. L-27654, Feb. 18, 1970) (1995 Bar Question)
Note: Art VIII Sec. 5 (5) of the Constitution provides that the authority to decide who may be admitted to the bar naturally and logically belongs to the judiciary represented by the Supreme Court in view of the nature of its judicial function and in the role played by attorneys in the administration of justice. Note: The SC acts through a Bar Examination Committee in the exercise of its judicial function to admit candidates to the legal profession. The committee is composed of a member of the court who acts as a chairman and 8 members of the bar who act as examiners in the 8 bar subjects with one subject assigned to each examiner. Acting as a sort of liaison officer between the Court and the Bar Chairman, on one hand, and the individual members of the committee, on the other, is the Bar Confidant who is at the same time a deputy clerk of the Court. He does not possess any discretion with respect to the matter of admission of examinees to the Bar. (In Re: Lanuevo, A.C. No. 1162, Aug. 29, 1975)
Q: What are the powers of the Supreme Court in relation to regulating the practice of law? A: DPD-DRO-PEE 1. Define them; 2. Prescribe the qualifications of a candidate and the subjects of the bar examinations; 3. Decide who will be admitted to practice; 4. Discipline, suspend or disbar any unfit and unworthy member of the bar; 5. Reinstate any disbarred or indefinitely suspended attorney; 6. Ordain the integration of the Philippine Bar; 7. Punish for contempt any person for unauthorized practice of law; 8. Exercise overall supervision of the legal profession; and 9. Exercise any other power as may be necessary to elevate the standards of the bar and preserve its integrity. Q: Can the legislature enact laws to regulate the practice of the law? A: No. It is noteworthy that unlike the 1935 and 1973 Constitution, the 1987 Constitution no longer provides for the power of the legislature to repeal, alter and supplement the Rules promulgated by the Supreme Court. However, the legislature, in the exercise of police power may enact laws regulating the practice of law to protect the public and promote public welfare.
Note: The legislature may not pass a law that will control the SC in the performance of its functions to decide who may enjoy the privilege of practicing law and any law of that kind is unconstitutional being an invalid exercise of legislative power. (In Re: Cunanan, Resolution, Mar. 18, 1954)
Q: Can Senate pass a law lowering the passing rate for candidates? A: No, the admission, suspension, disbarment and reinstatement of attorney at law in the practice of the profession and the supervision have been indisputably a judicial function and responsibility and remains vested with the Supreme Court. The Constitution has not conferred on Congress equal responsibility which the Constitution recognizes as to be continuously residing in the Supreme Court. (Ibid)

Q: Enumerate the initial requirements for admission to the bar. A: Under Sections 2, 5 and 6 of Rule 138, the applicant must be: (C21GRENAPOS) 1. 2. 3. 4. 5. Citizen of the Philippines; At least 21 years of age; Of Good moral character; Resident of the Philippines; Must produce before the SC satisfactory Evidence of good moral character; 6. No charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines (Sec. 2, Rule 138, RRC); 7. Must have complied with the Academic requirements; 8. Must Pass the bar examinations 9. Take the lawyers Oath; and 10. Sign the Roll of Attorneys.
Note: Section 5 of Rule 138, RRC, now provides that before being admitted to the examination, all applicants for admission to the bar shall satisfactorily show that they have successfully completed all the prescribed courses for the degree of Bachelor of Laws or its equivalent degree in a law school or university officially recognized by the Philippine Government or by the proper authority in the foreign jurisdiction where the degree has been granted. Section 5 now also provides that a Filipino citizen who graduated from a foreign law school shall be admitted to the bar examination only upon submission to the Supreme Court of certifications showing: (a) completion of all courses leading to the degree of Bachelor of Laws or its equivalent degree; (b) recognition or accreditation of the law school by the proper authority; and (c) completion of all fourth year subjects in the Bachelor of Laws academic program in a law school duly recognized by the Philippine Government. A Filipino citizen who completed and obtained his or her degree in Bachelor of Laws or its equivalent in a foreign law school must also present proof of completion of a separate bachelors degree. The Supreme Court has directed the Clerk of Court, through the Office of the Bar Confidant, to circularize its resolution approving the said amendments among all law schools in the country. (Bar Matter No. 1153, Re: Letter of Atty. Estelito P. Mendoza Proposing Reforms in the Bar Examinations through Amendments to Rule 138 of the Rules of Court, Mar. 9, 2010)
A: Bar Matter (B.M.) 1161 which regulates the conduct of the bar examinations, limits the examination up to five times only.
Note: B.M. 1161 also requires submission of the dean of a certification that the candidate has no derogatory record in school and if any in detail and status thereof.
Q: Ching was born on April 1964 of Filipino mother and Chinese father. He was conditionally admitted to take the bar examination because of questions arising to his citizenship. Upon passing the bar he was required to take further proof of citizenship and was not allowed to take the oath. Can he elect Philippine citizenship, 14 years after reaching the age of majority (required under the 1935 Constitution)? A: No, Ching is not qualified to be a lawyer for having elected Philippine citizenship 14 years after reaching the age of majority. Ching offered no reason why he delayed the election of Philippine citizenship. The procedure is not a tedious process. All that is required is to execute an affidavit and file the same in the nearest registry. (In Re: Application for Admission to the Philippine Bar of Vicente Ching, B.M. 914, Oct. 1, 1999) Q: Atty. Melendrez filed a petition to disqualify Meling from taking the bar exams and to impose disciplinary penalty as a member of the Philippine Shari'a Bar. He alleges that Meling, in his application to take the bar, failed to disclose the fact that he has 3 pending criminal cases. Also, Meling has been using the title Attorney" in his communications as secretary to the Mayor. Should Meling be disqualified from admission to the bar? A: Meling's deliberate silence and non-revelation of his pending criminal cases constitute concealment. The disclosure requirement is imposed to determine whether there is satisfactory evidence of good moral character of the applicant. By concealing the existence of such cases, the applicant flunks the test of fitness even if the cases are ultimately proven unwarranted or insufficient to impugn or affect the good moral character of the applicant.
Note: The issue of Meilings disqualification from admission to the bar is rendered moot since he did not pass the bar.
Q: How many times can a law graduate take up the bar?

Q: May sanctions be imposed on Meling as member of the Philippine Shari'a Bar? A: It was highly improper for Meling, as member of the Shari'a Bar, to use the title "Attorney". Only members of the Philippine bar, who have obtained the necessary degree in the study of law and successfully passed the bar exams, been admitted to the IBP and remain members in good standing are authorized to practice law and thus use the title. Meling was suspended from membership in the Philippine Shari'a Bar. (In the Matter of the Disqualification of Bar Examinee Haron S. Meling, B.M. No. 1154, June 8, 2004) Q: Alauya, a member of Sharia Bar and a clerk of court in Sharia District Court, wrote a letter to a corporation claiming to be a lawyer, affixing Attorney before his name. Can a member of the Sharia Bar affix the designation lawyer before their name? A: The Court reprimanded him for claiming to be a lawyer since persons who pass the Shari'a Bar are not full-fledged members of the Philippine Bar. The title of "attorney" is reserved to those who are admitted to the Integrated Bar of the Philippines and remain members thereof in good standing. (Alawi v. Alauya, A.M. No. SDC-97-2-P, Feb. 24, 1997) Q: Telesforo Diao was admitted to the Bar in 1953, after two years, Severino Martinez charged him with having falsely represented in his application for such Bar examination that he had the requisite academic qualifications. The SolGen recommended that Diaos name be erased from the Roll of Attorneys because Diao had not completed the prescribed pre-legal education, to wit: Diao did not complete his high school training and Diao never attended Quisumbing College, and never obtained his A.A. Diploma therefrom. Should Diaos name be erased from the Roll of Attorneys? A: Yes. Passing the bar examination is not the only qualification to become an attorney-at-law. Taking the prescribed courses of legal study is equally essential. Where it is found that the requirement was not complied with, the one who has been admitted to the bar after successfully passing the bar may be stricken of record on the ground that his admission was obtained under false pretenses. (Diao v. Martinez, A.C. No. 244, Mar. 29, 1963) Q: While the examination was in progress, the headwatcher, Lilian Mendigorin, reported that examinee Amparo was found reading a piece of paper containing notes in Criminal Law. He at first refused to surrender the paper, but later gave it to Mendigorin when she threatened to report the matter to the authorities. A verbal report was relayed to the Bar Chairman who forthwith gave instructions that no investigation be then made in order to forestall any commotion that might disturb the other candidates. Amparo was permitted to continue answering the questions. Headwatcher Mendigorin thereafter submitted a special report on the incident. He was still allowed to take the exams for the last Sunday of the Bar. Amparo did not pass the 1974 Bar Exams. Should Amparo be allowed to take the 1975 Bar Exams? A: No. It is clear that Amparo, in the course of the examination in Criminal Law, had possession of the piece of paper containing notes on the durations of penalties and that he knew that it is contrary to the rules to bring notes and books inside the examination room. It thus results that he knowingly violated Section 10, Rule 138 of the Rules of Court, which pertinently provides that "Persons taking the examination shall not bring papers, books or notes into the examination rooms." Amparo's impression that the notes had no "material use" to him is correct, in the sense that they bore no reference to any question asked in the examination in Criminal Law; even so he committed an overt act indicative of an attempt to cheat by reading the notes. His refusal to surrender the paper containing the notes when first demanded; his eventual surrender of it only after he was informed that he would be reported; and the facts that the notes pertained to Criminal Law and the examination then in Criminal Law, all these override and rebut his explanation that he merely read the notes to find out what they were as he had forgotten about them. Amparo is guilty of (1) bringing notes into the examination room and (2) attempted cheating. (In Re: Pedro Amparo, G.R. No. 000, July 18, 1975) (1974 Bar Question) Q: Mike Adelantado, an aspiring lawyer, disclosed in his petition to take the 2003 bar examinations that there were two civil cases pending against him for nullification of contract and damages. He was thus allowed to

conditionally take the bar, and subsequently placed third in the said exams. In 2004, after the two civil cases had been resolved, Mike Adelantado filed his petition to take the Lawyers Oath and sign the Roll of Attorneys before the Supreme Court. The Office of the Bar Confidant, however, had received two anonymous letters: the first alleged that at the time Mike Adelantado filed his petition to take the bar, he had two other civil cases pending against him, as well as a criminal case for violation of B.P. 22; the other letter alleged that Mike Adelantado, as Sangguniang Kabataan chairperson, had been signing the attendance sheets of SK meetings as Atty. Mike Adelantado. Having passed the bar, can Mike already use the appellation attorney? Explain your answer. A: No. Only those who have been admitted to the Philippine Bar can be called Attorney (Alawi v. Alauya, A.M. No. SDC-97-2-P, Feb. 24, 1997). Passing the Bar examination is not sufficient for admission of a person to the Philippine Bar. He still has to take the oath of office and sign the Attorneys Roll as prerequisites to admission. Q: Should Mike be allowed to take his oath as a lawyer and sign the Roll of Attorneys? Explain your answer. A: No, he should not be allowed to take his oath and sign the Attorneys Roll. Rule 7.01 of the Code of Professional Responsibility provides that a lawyer shall be answerable for knowingly making a false statement or suppressing a material fact in connection with his application for admission to the bar. Mr. Adelantado made a false statement in his application to take the bar by revealing only that there were two civil cases pending against him. This is sufficient ground to deny him admission to the bar (In Re: Galang, 66 SCRA 245 [1975]). He also showed lack of good moral character in using the title attorney before admission to the Bar (Aguirre v. Rana, 403 SCRA 342 [2003]). (2005 Bar Question) Q: Enumerate the continuing requirements for the practice of law after admission to the Bar. A: He must: MIP-MEJ 1. Remain a Member of the Bar; 2. Regularly pay all IBP membership dues; 3. Regularly pay the Professional Tax Receipt (PTR); 4. Comply with the Mandatory Continuing Legal Education (MCLE); 5. 6. Faithfully observe the rules and Ethics of the legal profession; and Be continually subject to Judicial disciplinary control.
Q: What are the obligations of a newly constituted lawyer? A: 1. Pay the full annual membership dues;
Note: Lawyers who are senior citizens are not exempt from payment of IBP dues, since the Senior Citizens Act which exempts senior citizens from payment of taxes does not include exemption from payment of membership and association fees.
2. 3. 4. 5.
Undergo Mandatory Continuing Legal Education or MCLE; Undergo Mandatory Legal Aid Service; Pay Professional Tax Receipt; and Prove that he is a person of good moral character.
C. APPEARANCE OF NON-LAWYERS IN COURTS Q: May a non-lawyer appear in court? A: GR: No. Only those who are licensed to practice law can appear and handle cases in court. XPN: 1. Law Student Practice 2. Non-lawyers in Court 3. Non-lawyers in Administrative Tribunal 1. LAW STUDENT PRACTICE Law student practice rule A law student who has successfully completed 3rd year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal education program approved by the Supreme Court, may appear without compensation in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent clients accepted by the legal clinic of the law school (Sec. 1, Rule 138-A). The appearance of the law student authorized by this rule, shall be under the direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by the law school. Any and all pleadings, motions, briefs, memoranda or other papers to be filed, must be signed by the supervising attorney for and in behalf of the legal clinic. (Sec. 2, Rule 138-A)

Note: The law student shall comply with the standards of professional conduct governing members of the Bar. Failure of an attorney to provide adequate supervision of student practice may be a ground for disciplinary action (Circular No.19, dated December 19, 1986). be convicted not because he is guilty but because he does not know how to establish his innocence. Where an accused was not duly represented by a member of the bar during trial, the judgment should be set aside, and the case remanded to the trial court for a new trial. (People v. Santocildes, Jr., G.R. No. 109149, Dec. 21, 1999) With regard to a juridical person, it must always appear in court through a duly licensed member of the bar, except before MTC where it may be represented by its agent or officer who need not be a lawyer. Note: Partnership with a non-lawyer is VOID. In the formation of partnership for the practice of law, no person should be admitted or held out as a practitioner or member who is not a member of the legal profession duly authorized to practice, and amenable to professional discipline.
2. NON-LAWYERS IN COURT a. Cases before the MTC: A party to the litigation, may conduct his own case or litigation in person, with the aid of an agent or friend appointed by him for that purpose (Sec. 34, Rule 138, RRC); Before any other court, a party may conduct his litigation personally. But if he gets someone to aid him, that someone must be authorized member of the Bar (Sec. 34, Rule 138, RRC)
Note: A non-lawyer conducting his own litigation is bound by the same rules in conducting the trial case. He cannot after judgment, claim that he was not properly represented.
b.
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Criminal case before the MTC in a locality where a duly licensed member of the Bar is not available, the judge may appoint a nonlawyer who is a: i. Resident of the province; AND aid the accused in his defense; (Sec. 7, Rule 116 RRC)
Q: A, a mere high school graduate, with the aid of a friend who is a college undergraduate, filed a complaint for recovery of a sum of money in the amount of Four Thousand (P4,000.00) Pesos in the Metropolitan Trial Court of his town. The Clerk of Court told A that his complaint might be dismissed for insufficiency as to form because neither he nor his friend who is assisting him is a lawyer. Is the Clerk of Court correct? A: The Clerk of Court is not correct. In the Justice of the Peace courts (now known as Municipal Trial Court or Municipal Circuit Trial Courts or Metropolitan Trial Court), a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. (Sec. 34, Rule 138, Rules of Court). (1999 Bar Question) 3. NON-LAWYERS IN ADMINISTRATIVE TRIBUNAL a. Under the Labor Code, non-lawyers may appear before the NLRC or any Labor Arbiter, if: i. They represent themselves; OR ii. They represent their organization or members thereof; (Art 222, PD 442, as amended) (2002 Bar Question) iii. If they are duly accredited members of any legal aid office duly recognized by the Department of Justice, or the Integrated Bar of the Philippines in cases referred to by the latter. (Lapena, 2009)
Note: He is not, however, entitled to attorneys fees under Article 222 of the Labor Code for not being a lawyer. (Five J. Taxi v. NLRC, G.R. No. 111474, August 22, 1994)
ii. Of good repute for probity and ability to
d.
Any official or other person appointed or designated to appear for the Government of the Philippines in accordance with law. (Sec. 33, Rule 138 RRC)
Note: Such person shall have all the rights of a duly authorized member of the bar to appear in any case in which said government has an interest direct or indirect. (Sec. 33,Rule 138, RRC)
Q: May a party represent himself? A: In civil cases, an individual litigant has the right to conduct his litigation personally. In criminal cases, in grave and less grave offenses, an accused who is a layman must always appear by counsel; he cannot conduct his own defense without violating his right to due process of law.
Note: Even the most intelligent of the educated men may have no skill in the science of law, particularly in the rules of procedure and without counsel; he may

b. Under the Cadastral Act, a non-lawyer can represent a claimant before the Cadastral Court. (Sec. 9, Act no. 2259) Pro Se (Section 34, Rule 138) Q: Maderada filed charges against Judge Mediodea for "gross ignorance of the law amounting to grave misconduct" for failing "to observe and apply the Revised Rule on Summary Procedure" in the civil case. On the other hand, Judge Mediodea maintained that Maderada, in appearing as counsel on her own behalf, failed to secure authority from the Court and to file her leave of absence every time she appeared in court. Can Maderada appear as counsel for herself and her co-plaintiff even if she is not a lawyer? A: Section 34 of Rule 138 of the Rules of Court allows persons who are not lawyers by profession to litigate their own case in court. The right of complainant to litigate her case personally cannot be taken away from her. Her being an employee of the judiciary does not remove from her the right to proceedings in propria persona or to selfrepresentation. Clearly, in appearing for herself, complainant was not customarily or habitually holding herself out to the public as a lawyer. Neither was she demanding payment for such services. Hence, she cannot be said to be in the practice of law. However, it was also clearly established that complainant had appeared on behalf of her coplaintiff in the aforementioned case, for which act the former cannot be completely exonerated. Obviously, because she was already defending the rights of another person when she appeared for her co-plaintiff, it cannot be argued that complainant was merely protecting her rights. That their rights may be interrelated will not give complainant authority to appear in court. The undeniable fact remains that she and her coplaintiff are two distinct individuals. The former may be impairing the efficiency of public service once she appears for the latter without permission from the Court. (Maderada v. Judge Mediodea, A.M. No. MTJ-02-1459, Oct. 14, 2003) Q: Ferdinand Cruz sought permission to enter his appearance for and on his behalf before the RTC as the plaintiff in a Civil Case for Abatement of Nuisance. Cruz, a fourth year law student, anchors his claim on Section 34 of Rule 138 of the Rules of Court that a non-lawyer may appear before any court and conduct his litigation personally. Judge Mijares denied the motion with finality. In the same Order, the trial court held that for the
Q: Kanlaon Construction and Reluyas, et al. case were assigned before two labor arbiters. The Engineers as co-defendant, without written authority to represent Kanlaon Construction, admitted the complaints against them. By virtue of such, the labor arbiters adjudicated the case in favor of Reluya and the others. Can an engineer represent a co-defendant in a case before the labor arbiter? A: No, the appearance of the engineer on behalf of Kanlaon Construction required written proof of authorization. It was incumbent upon the arbiters to ascertain this authority especially since both engineers were named co-respondents in the cases before the arbiters. Absent this authority, whatever statements and declarations the engineers made before the arbiters could not bind Kanlaon. Nevertheless, even assuming that the engineers were authorized to appear as representatives of Kanlaon, they could bind the latter only in procedural matters before the arbiters and the Commission. Kanlaon's liability arose from engineers alleged promise to pay. A promise to pay amounts to an offer to compromise and requires a special power of attorney or the express consent of Kanlaon. The authority to compromise cannot be lightly presumed and should be duly established by evidence. (Kanlaon Construction v. NLRC, G.R. No. 126625, Sept. 18, 1997) Q: What are the limitations on appearance of non-lawyers before the courts? A: 1. He should confine his work to nonadversary contentions; He should not undertake purely legal work, such as the examination or crossexamination of witnesses, or the presentation of evidence; and His services should not be habitually rendered. He should not charge or collect attorneys fees. (PAFLU v. Binalbagan Isabela Sugar Co. L-23959, November 1971)
2.
3.
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failure of Cruz to submit the promised document and jurisprudence and for his failure to satisfy the requirements or conditions under Rule 138-A of the Rules of Court, his appearance was denied. Did the court act with grave abuse of discretion amounting to lack or excess of jurisdiction when it denied the appearance of Cruz as party litigant? A: Yes. The law recognizes the right of an individual to represent himself in any case to which he is a party. The Rules state that a party may conduct his litigation personally or with the aid of an attorney, and that his appearance must either be personal or by a duly authorized member of the Bar. The individual litigant may personally do everything in the course of proceedings from commencement to the termination of the litigation. Considering that a party personally conducting his litigation is restricted to the same rules of evidence and procedure as those qualified to practice law, Cruz, not being a lawyer himself, runs the risk of falling into the snares and hazards of his own ignorance. Therefore, Cruz as plaintiff, at his own instance, can personally conduct the litigation of his Case. He would then be acting not as a counsel or lawyer, but as a party exercising his right to represent himself. The trial court must have been misled by the fact that Cruz is a law student and must, therefore, be subject to the conditions of the Law Student Practice Rule. It erred in applying Rule 138-A, when the basis of Cruz's claim is Section 34 of Rule 138. The former rule provides for conditions when a law student may appear in courts, while the latter rule allows the appearance of a nonlawyer as a party representing himself. (Cruz v. Mijares, et al., G.R. No. 154464, Sept. 11, 2008) 4. PROCEEDINGS WHERE LAWYERS ARE PROHIBITED FROM APPEARING Q: What are the proceedings to which lawyers are prohibited from appearing? A: 1. Proceedings before the Small Claims Court -No attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or defendant (Sec. 17, Rule of Procedure for Small Claims Cases)
Note: If the court determines that a party cannot properly present his/her claim or defense and needs assistance, the court may, in its discretion, allow another individual who is not an attorney to assist that party upon the latters consent (Sec. 17, Rule of Procedure for Small Claims Cases).
2.
Proceedings before the Katarungang Pambarangay - during the pre-trial conference under the Rules of Court, lawyers are prohibited from appearing for the parties. Parties must appear in person only except minors or incompetents who may be assisted by their next of kin who are not lawyers. (Formerly Sec. 9, P.D. No. 1508; Sec. 415, Local Government Code of 1991, R.A. 7160)
D. SANCTIONS FOR PRACTICE OR APPEARANCE WITHOUT AUTHORITY 1. SANCTIONS AGAINST UNAUTHORIZED PRACTICE OF LAW OF LAWYERS Q: What are the remedies against unauthorized practice of law of lawyers? A: DICEDA 1. Declaratory relief; 2. Petition for Injuction; 3. Contempt of court; 4. Criminal complaint for Estafa against a person who falsely represented himself to be an attorney to the damage of a party; 5. Disqualification and complaints for disbarment; or 6. Administrative complaint against the erring lawyer or government official. Q: KWD, a GOCC, hired respondent, Atty. I, as private legal counsel for one (1) year effective with the consent of the Office of the Government Corporate Counsel (OGCC) and the Commission on Audit (COA). The controversy erupted when two (2) different groups, herein referred to as the Dela Pea board and Yaphockun board, laid claim as the legitimate Board of Directors of KWD. Dela Pea board appointed respondents Atty. N, V and M as private collaborating counsels for all cases of KWD and its Board of Directors, under the direct supervision and control of Atty. I. Meanwhile, the OGCC had approved the retainership contract of atty. C as new legal counsel of KWD and stated that the retainership contract of Atty. I had expired. The termination of Atty. Is
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contract was said to be justified by the fact that the Local Water Utilities Administration had confirmed the Yaphockun board as the new Board of Directors of KWD and that said board had terminated Atty. Is services and requested to hire another counsel. Complainants then filed a disbarment complaint against counsels V and M alleging that respondents acted as counsel for KWD without legal authority. Are respondents validly authorized to appear as counsels of KWD? A: No. Attys. N, V and M had no valid authority to appear as collaborating counsels of KWD. Nothing in the records shows that Atty. N was engaged by KWD as collaborating counsel. While the 4th Whereas Clause of Resolution appointing Atty. N partly states that he and Atty. I "presently stand as KWD legal counsels," there is no proof that the OGCC and COA approved Atty. Ns engagement as legal counsel or collaborating counsel. Insofar as Attys. V, Jr. and M are concerned, their appointment as collaborating counsels of KWD under Resolution No. 009 has no approval from the OGCC and COA. In the case of Atty. I, he also appeared as counsel of KWD without authority, after his authority as its counsel had expired. Under Section 27, Rule 138 of the Rules of Court, a member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for xxx corruptly or willfully appearing as an attorney for a party to a case without authority to do so. Disbarment, however, is the most severe form of disciplinary sanction, and, as such, the power to disbar must always be exercised with great caution, and should be imposed only for the most imperative reasons and in clear cases of misconduct affecting the standing and moral character of the lawyer as an officer of the court and member of the bar. Accordingly, disbarment should not be decreed where any punishment less severe such as a reprimand, suspension or fine, would accomplish the end desired. (Vargas v. Atty. Ignes, Atty. Mann, Atty. Viajar and Atty. Nadua, A.C. No. 8096, July 5, 2010)
Note: In any case, an unauthorized appearance of an attorney may be ratified by the client either expressly or impliedly. Ratification retroacts to the date of the lawyers first appearance and validates the action taken by him. (Sps. Agbulos v. Gutierrez, G.R. No. 176530, June 16, 2009)
Q. What are the remedies against unauthorized practice of law of persons who are not lawyers? A: 1. 2. 3. 4. Declaratory relief; Petition for Injunction; Contempt of court; Criminal complaint for Estafa against a person who falsely represented himself to be an attorney to the damage of a party;
Q. what are the sanctions against unauthorized practice of law of persons who are not lawyers? A: He may be punished with contempt of court, severe censure and three (3) months imprisonment because of the highly fraudulent and improper conduct tending directly to impede, obstruct, degrade, and make a mockery of the administration of justice. (Manangan v. CFI, G.R. No. 82760, August 30,1990; Lapena, 2009)
Note: A disbarred lawyer has no more authority to appear in Court as a lawyer. A lawyer who was previously disbarred but continued to represent himself as a lawyer was found guilty of indirect contempt and fine with imprisonment in case of failure to pay within five (5) days. (Lemoine v. Atty. Balon, Jr., A.C. No. 5829, October 28,2003)
Contempt of Court Q: What is the nature of the power of contempt? A: It is exercised on the preservative and not on the vindictive principle and on corrective rather than the retaliatory idea of punishment, for purposes that are impersonal. It is criminal in nature. The power to punish for contempt is inherent in all courts. It is essential in the observance of order in judicial proceedings and to enforcement of judgment orders and writs. Q: What are the kinds of contempt? A: 1. Direct Consists of misbehavior in the presence of or so near a court or judge as to interrupt or obstruct the proceedings before the court or the administration of justice; punished summarily. Indirect One committed away from the court involving disobedience of or resistance to a lawful writ, process, order, judgment or command of the court, or tending to belittle, degrade, obstruct, interrupt or embarrass the court; not summary in nature.
2.
2. SANCTIONS AGAINST UNAUTHORIZED PRACTICE OF LAW OF PERSONS WHO ARE NOT LAWYERS
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3. Civil Is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein. It is remedial in nature. Criminal Conduct directed against the authority and dignity of a court or of a judge, as in unlawfully assailing or discrediting the authority or dignity of a court or of a judge, or in doing a duly forbidden act. Intent is necessary.
Note: Where the punishment imposed, whether against a party to a suit or a stranger, is wholly or primarily to protect or vindicate the dignity and power, either by fine payable to the government or by imprisonment, or both, it is deemed a judgment in criminal case. Where the punishment is by fine directed to be paid to a party in the nature of damages for the wrong inflicted, or by imprisonment as coercive measure to enforce the performance of some act for the benefit of the party or in aid of the final judgment or decree rendered in his behalf, the contempt judgment will, if made before final decree, be treated as in the nature of an interlocutory order.
7. 8. 9.
Aiding in unauthorized practice of law (suspended or disbarred) Unlawful retention of clients funds; and Advise client to commit contemptuous acts.
4.
Note: "A practicing lawyer and officer of the court facing contempt proceedings cannot just be allowed to voluntarily retire from the practice of law which would negate the inherent power of the court to punish him for contempt" (Montecillo v. Gica, 60 SCRA 234). (1998 Bar Question)
Q: A judge cited complainant, a driver at the Engineering Department of the Makati City Hall, in contempt for using the formers parking space, and refused to accept the drivers apology. He sentenced the driver to five (5) days imprisonment and a fine of (P1, 000.00). Is the judge administratively liable for grave abuse of authority in citing the driver for contempt of court? A: Yes. The Court does not see how the improper parking by the driver could even in the remotest manner, disrupt the speedy administration of justice, as claimed by the judge. At most, it would cause the Judge inconvenience or annoyance, but still, this does not fall under any of the acts for which a person could be cited for contempt. Neither does it appear from the records, nor from the evidence presented, that the complainant intended any disrespect toward respondent Judge. In fact, upon being summoned, the driver immediately apologized for his mistake. Worse, the Judge immediately detained the driver, thereby preventing him from resorting to the remedies provided under the Rules of Court. Such abusive behavior on the part of respondent judge fails to show his integrity, which is essential not only to the proper discharge of the judicial office, but also to his personal demeanor. (Nunez v. Ibay, A.M. No. RTJ-06-1984, June 30, 2009) Q: Dela Cruz misrepresented himself as a lawyer in the application for habeas corpus of Gamido. What punishment should the court impose on Dela Cruz? A: The Court declared him guilty of indirect contempt for maliciously and falsely portraying himself as a member of the bar, appearing in court and filing pleadings. (In the Matter of the Application for Habeas Corpus of Maximino Gamido; Gamido v. New Bilibid Prison, G.R. 146783, July 29, 2002) Q: Are the power to hold a person in contempt and the power to disbar the same?
Q: What are the two-fold aspects of the exercise of the power of contempt? A: 1. The proper punishment of the guilty party for his disrespect to the court or its order; and To compel his performance of some act or duty required of him by the court which he refuses to perform.
2.
Note: The question of whether the contempt committed is civil or criminal, does not affect the jurisdiction or the power of a court to punish the same. (Halili v. CIR, G.R. No. L-24864, Nov. 19, 1985)
Q: Enumerate the acts of a lawyer that constitutes contempt? A: 1. 2. 3. 4. 5. 6. Misbehavior as officer of court Disobedience or resistance to court order Abuse or interference with judicial proceedings Obstruction in administration of justice Misleading the courts Making false allegations, criticisms, insults, veiled threats against the court
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A: No. The power to punish for contempt and the power to disbar are separate and distinct, and that the exercise of one does not exclude the exercise of the other. (People v. Godoy, G.R. Nos. 115908-09, Mar. 29, 1995) Q: In the course of the testimony of an almost illiterate victim of swindling travel syndicate, the trial judge addressed these words to the witness: You have no business coming to court without being sure of your facts; the way I look at it, you are here to blackmail these businessman into giving you free airplane travel. The private prosecutor stood up to move that the remarks of the court regarding the alleged blackmail be made of record for purposes of an appeal or other future proceedings. The trial judge countered with an order directing the lawyer to show cause why he should not be held in direct contempt, for allegedly threatening the court with possible future action. May the contempt citation be upheld? Explain. A: The contempt citation may not be sustained. A judge should exercise proper judicial decorum. He should be considerate of witness and others in attendance upon his court. He should be courteous and civil, for it is unbecoming of a judge to utter intemperate language during the hearing of a case (Retuya v. Equipilog; Santos v. Cruz) It was the right of counsel to put on record said remarks for the protection of his witness and client. (In Re: Aguas). (1987 Bar Question) Q: Balajadia filed a criminal case against petitioners. In paragraph 5 of the complaintaffidavit, Balajadia appeared to have asserted that he is a "practicing lawyer. However, certifications issued by the Office of the Bar Confidant and the Integrated Bar of the Philippines showed that he has never been admitted to the Philippine Bar. Hence, petitioners filed a case against him claiming that he is liable for indirect contempt for misrepresenting himself as a lawyer. Balajadia, on his defense, claimed that the allegation that he is a practicing lawyer was an honest mistake. He stated that the secretary of Atty. Aquino prepared the subject complaintaffidavit copying in verbatim paragraph 5 of Atty. Aquinos complaint-affidavit. Hence, it was inadvertently alleged that respondent is a practicing lawyer in Baguio City which statement referred to the person of Atty. Aquino and his law office address. Is Balajadia liable for indirect contempt? A: No. Respondent Balajadia never intended to project himself as a lawyer to the public. It was a clear inadvertence on the part of the secretary of Atty. Aquino. The allegation that he is a practicing lawyer cannot, by itself, establish intent as to make him liable for indirect contempt. In several cases, the Court ruled that the unauthorized practice of law by assuming to be an attorney and acting as such without authority constitutes indirect contempt which is punishable by fine or imprisonment or both. The liability for the unauthorized practice of law under Section 3(e), Rule 71 of the Rules of Court is in the nature of criminal contempt and the acts are punished because they are an affront to the dignity and authority of the court, and obstruct the orderly administration of justice. (Tan v. Balajadia, G.R. No. 169517, March 14, 2006) Q: An administrative complaint was filed against Malinao, court interpreter of the CFI of Catbalogan Samar. He was charged with illegal practice of law for appearing in court as attorney when he is not and collecting fees from his client as a means of livelihood; grave misconduct in office for instigating persons in his barrio to grab land, rob or coerce and incite them telling them not to be afraid as he is a court employee and has influence over judges; falsification for unfaithfully filing his time record in the CFI as he made it appear that he is present on certain dates but in truth, he was appearing as counsel in front of certain judges. He was also charged with violation of executive order and civil service law as it is prohibited for a civil service employee like him to engage in private practice of any profession without permission from the Department Head. Malinao defended that his participation for defendants cause (in the cases where he appeared as counsel) was gratuitous as they could not engage the services of counsel by reason of poverty and absence of one in the locality. Is Malinao guilty of the charges filed against him? A: Yes. The SC held that Malinao, by appearing as counsel without being a member of the bar constitutes illegal practice of law.
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He also did not secure the permission from his superiors and, worse, he falsified his time record of service to conceal his absence from his office on the dates in question. The number of times that Malinao acted as counsel under the above circumstances would indicate that he was doing it as a regular practice obviously for considerations other than pure love of justice. He was dismissed from his position as court interpreter with prejudice to reemployment in the judicial branch of the government. (Zeta v Malinao, A.M. No. P220 , December 20, 1978) E. PUBLIC OFFICIALS AND THE PRACTICE OF LAW Q: Who are the public officials? A: Public officials include elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service, including military and police personnel, whether or not they receive compensation, regardless of amount (Sec. 3[b], RA 6713) Q: What are the prohibited acts or omissions of public officers? A: 1. Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after termination. (Sec. 3[d], RA 3019) Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law. (Sec. 7[b], RA 6713)
Note: These prohibitions shall continue to apply for a period of 1 year after resignation, or separation from public office. The 1 year prohibition shall also apply in connection with any matter before the office he used to be with.
3.
4.
5.
6. 7. 8.
Government Prosecutors. (People v. Villanueva, G.R. No. L-19450, May 27, 1965) President, Vice-President, members of the cabinet, their deputies and assistants. (Sec. 13, Art VII, 1987 Constitution) Members of the Constitutional Commission. (Sec. 2, Art IX-A, 1987 Constitution) Ombudsman and his deputies. (Sec. 8 [2nd par], Art. IX, 1987 Constitution) All governors, city and municipal Mayors. (R.A. No. 7160, Sec. 90) Those prohibited by Special law. (1990 Bar Question)
Q: Who are the public officials who are restricted from engaging in the practice of law in the Philippines?
1.
No Senator or member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasijudicial and other administration bodies. (Sec. 14, Art. VI, 1987 Constitution)
Note: The word appearance includes not only arguing a case before any such body but also filing a pleading on behalf of a client as by simply filing a formal motion, plea or answer. (Ramos v. Manalac, G.R. No. L2610, June 16, 1951) Neither can he allow his name to appear in such pleading by itself or as part of a firm name under the signature of another qualified lawyer because the signature of an agent amounts to a signing of a non-qualified senator or congressman, the office of an attorney being originally of agency, and because he will, by such act, be appearing in court or quasi-judicial or administrative body in violation of the constitutional restriction. (In re: David, Adm Case No. 98, July 13, 1953)
2.
2.
Q: Who are the public officials who cannot engage in the private practice of law in the Philippines? A: JOPPCOMS 1. Judges and other officials as employees of the Supreme Court. (Rule 148, Sec. 35, RRC) 2. Officials and employees of the OSG. (Ibid.)
Under the Local Government Code (Sec. 91, R.A. 7160,) Sanggunian members may practice their professions provided that if they are members of the Bar, they shall not: a. Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party b. Appear as counsel in any criminal case wherein an officer or employee of the national or local government is
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accused of an offense committed in relation to his office Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official Use property and personnel of the government except when the Sanggunian member concerned is defending the interest of the government. (1992, 2000 Bar Questions)
PROHIBITION OR DISQUALIFICATION OF FORMER GOVERNMENT ATTORNEYS (Refer to Rule 6.03, Canon 6, CPR) Note: The restriction against a public official from using his public position as a vehicle to promote or advance his private interests extends beyond his tenure on certain matters in which intervened as a public official. (Agpalo, 2004).
c.
d.
F. LAWYERS AUTHORIZED TO REPRESENT THE GOVERNMENT Q: Who are persons authorized to represent the government? A: 1. Solicitor General Q: What are the possible actions that the Sol Gen may undertake in the discharge of his duties? A: The Sol Gen, in his discretion, may pursue any of the following actions: 1. 2. 3. 4. Prosecute Not to prosecute To abandon a prosecution already started; or To take a position adverse to the people of the Philippines in a criminal case or to that of a government agency or official, when he believes that justice will be served by taking a different stand.
Note: while certain local elective officials (like governors, mayors, provincial board members and councilors) are expressly subjected to a total or partial proscription to practice their profession or engage in any occupation, no such interdiction is made on punong barangay and the members of the Sangguniang Barangay. Expressio unius est exclusion alterius. Since they are excluded from any prohibition, the presumption is that they are allowed to practice their profession. However, he should procure prior permission or authorization from the head of his Department, as required by the Civil Service Regulations. (Catu v. Rellosa, A.C. No. 5738, February 19, 2008)
3.
Under Sec. 1, R.A. 910, as amended, a retired justice or judge receiving pension from the government, cannot act as counsel: a. In any civil case in which the Government, or any of its subdivision or agencies is the adverse party; or In a criminal case wherein an officer or employee of the Government is accused of an offense in relation to his office; nor Collect any fees for his appearance in any administrative proceedings to maintain an interest adverse to the government, provincial or municipal, or to any of its legally constituted officers. (Sec. 1, R.A. 910)
b.
c.
Q: In a case between two government agencies, should the Sol Gen refrain from performing his duty? A: No. It is incumbent upon him to present to the court what he considers as would legally uphold the best interest of the government. Q: In the above question, what is the remedy of the government office adversely affected by the position taken by the Sol Gen? A: The government agency adversely affected, if it still believes in the merits of its case, may appear on its own behalf through its legal officer or representative. 2. Any person appointed to appear for the government of the Philippines in accordance with law. (Sec. 33, Rule 138 RRC)
4.
Civil service officers and employees without permit from their respective department heads. (Noriega v. Sison, G.R. No. L- 24548, Oct. 27, 1983)
Note: Misconduct in office as a public official may be a ground for disciplinary action if it is of such character as to affect his qualification as lawyer or show moral delinquency.
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G. LAWYERS OATH Q: State the lawyers oath. A: I, __________________, do solemnly swear that I will maintain allegiance to the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not willingly nor wittingly promote or sue any groundless, false or unlawful suit, or give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion, with all good fidelity as well to the court as to my clients; and I impose upon myself this voluntary obligations without any mental reservation or purpose of evasion. So help me God. (Form 28, RRC) Q: What is the importance of the lawyers oath? A: By taking the lawyers oath, a lawyer becomes the guardian of truth and the rule of law and an indispensable instrument in the fair and impartial administration of justice. Good moral character includes, at least, common honesty. Deception and other fraudulent acts are not merely unacceptable practices that are disgraceful and dishonorable; they reveal a basic moral flaw. (Olbes v. Deciembre, A.C. No. 5365, Apr. 27, 2005)
Note: The lawyers oath is not a mere ceremony or formality for practicing law to be forgotten afterwards nor is it mere words, drift and hollow, but a sacred trust that every lawyer must uphold and keep inviolable at all times.
retained her husband, Atty. Samuel C. Occea, as her lawyer. The settlement of the estate have been pending for thirteen (13) years when it was transferred under the sala of Judge Ruiz who found out that the principal cause of delay was the failure of Atty. Occea to obey lawful court orders such as the submission of the latest inventory of all securities of the estate, take possession of all certificates of stocks or their replacements belonging to the estate and as well as its inventory, and by willfully prolonging the litigation through his various maneuvers, such as instituting actions for Atty. Occeas claim for attorneys fee and filing other cases before the court thus prolonging the settlement of the case. Did Occeas acts constitute a gross violation of his oath as a lawyer? A: Atty. Occeas acts of disobeying lawful court orders and willfully prolonging the litigation through his maneuvers constitute a gross violation of his lawyers oath that he will not willingly sue any groundless, false or unlawful suit or delay no man for money of malice. (Re: Administrative Case against Samuel Occena, A. C. No. 2841, July 3, 2002) Q: Argosino passed the bar examinations held in 1993. The Court however deferred his oathtaking due to his previous conviction for Reckless Imprudence Resulting in Homicide. The criminal case which resulted in Argosinos conviction arose from the death of a neophyte during fraternity initiation rites. Various certifications show that he is a devout Catholic with a genuine concern for civic duties and public service. Also, it has been proved that Mr. Argosino has exerted all efforts to atone for the death of Raul. Should Argosino be allowed to take his lawyer's oath? A: The practice of law is a privilege granted only to those who possess the strict intellectual and moral qualifications required of lawyers who are instruments in the effective and efficient administration of justice. The SC recognizes that Mr. Argosino is not inherently of bad moral fiber given the various certifications that he is a devout Catholic with a genuine concern for civic duties and public service and that it has been proved that he has exerted all efforts to atone for the death of Raul and the court gave him the benefit of the doubt, taking judicial notice of the general tendency of youth to be rash, temerarious and uncalculating. (Re: Petition of Al Argosino to Take the Lawyers Oath, B.M. No. 712, Mar. 19, 1997)
Q: State the significance of the lawyer's oath. What, in effect, does a lawyer represent to a client when he accepts a professional employment for his services? A: "The significance of the oath is that it not only impresses upon the attorney his responsibilities but it also stamps him as an officer of the court with rights, powers and duties as important as those of the judges themselves. It is a source of his obligations and its violation is a ground for his suspension, disbarment or other disciplinary action." (Agpalo, Legal Ethics, 1992 ed., p. 59). Q: Under the terms of the Last Will and Testament of the late Ogan, his residuary estate was divided among his seven children. One of them, Necitas Ogan-Occea, was named in the will as executrix of the estate. As such, she
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Q: Grande was the private offended party in a criminal case while Atty. De Silva was the counsel for the accused. During the course of the proceedings, Atty. De Silva tendered a check in favor of Grande in order for the latter to desist from participating as a witness against her client. Eventually, Grande accepted the check and refused to participate as a complaining witness thereby leading to the dismissal of the case. However, to Grandes consternation, the check bounced because Atty. De Silvas account was already closed. When the court ordered Atty. De Silva to comment on the charges against her, she deliberately refused to accept all the notices coming from the court. Is Atty. De Silva guilty of breach of trust? Did she violate her oath as a lawyer by issuing a bouncing check and by refusing to accept the notices sent to her coming from the court? A: Yes, Atty. De Silva had committed a breach of trust in issuing a bouncing check which amounted to deceit and violation of the lawyers oath. The nature of the office of an attorney requires that a lawyer shall be a person of good moral character. Since this qualification is a condition precedent to a license to enter upon the practice of law, the maintenance thereof is equally essential during the continuance of the practice and the exercise of the privilege. Gross misconduct which puts the lawyer's moral character in serious doubt may render her unfit to continue in the practice of law. The loss of moral character of a lawyer for any reasons whatsoever shall warrant her suspension or disbarment, because it is important that members of the legal brotherhood must conform to the highest standards of morality. Any wrongdoing which indicates moral unfitness for the profession, whether it is professional or nonprofessional justifies disciplinary action. Moreover, the attitude of Atty. De Silva in deliberately refusing to accept the notices served on her betrays a deplorably willful character or disposition which stains the nobility of the legal profession. Her conduct not only underscores her utter lack of respect for authority; it also brings to the fore a darker and more sinister character flaw in her psyche which renders highly questionable her moral fitness to continue in the practice of law: a defiance for law and order which is at the very core of her profession. (Grande v. Atty. De Silva, A.C. No. 4838, July 29, 2003)
18
Legal Ethics Duties and Responsibilities of Lawyers

Canons 1-6
II. DUTIES AND RESPONSIBILITIES OF A LAWYER
1. 2.
Q: What are the four-fold duties of a lawyer? A: 1. Public/Society He must not undertake any action which violates his responsibility to the society as a whole, he must be an example in the community for his uprightness as a member of the society. The lawyer must be ready to render legal aid, foster legal reforms, be guardian of due process, and aware of his special role in the solution of special problems and be always ready to lend assistance in the study and solution of social problems. (Canon 1-6, CPR) Bar/Legal Profession Observe candor, fairness, courtesy and truthfulness in his conduct towards other lawyers, avoid encroachment in the business of other lawyers and uphold the honor of the profession. (Canon 7-9, CPR)
3.
4. 5.
6.
Uphold the Constitution and obey the laws of the land and legal processes Make legal services available in an efficient and convenient manner Use of true, honest, fair, dignified and objective information in making known legal services Participate in the improvement of the legal system Keep abreast of legal development and participate in continuing legal education program and assist in disseminating information regarding the law and jurisprudence Applicability of the CPR to lawyers in the government service Chapter 2. The lawyer and the legal profession.
2.
Canons 7-9 7. At all times uphold integrity and dignity of the profession and support the activities of the IBP Conduct himself with courtesy, fairness and candor toward his colleagues and avoid harassing tactics against opposing counsel Not to directly or indirectly assist in the unauthorized practice of law Chapter 3. The lawyer and the courts. Canons 10-13 10. Owes candor, fairness and good faith to the court 11. Observe and maintain the respect due to the courts and judicial officers and insist in similar conduct 12. Duty to assist in the speedy and efficient administration of justice 13. Rely upon the merits of his cause, refrain from any impropriety which tends to influence courts, or give the appearance of influencing the courts Chapter 4. The lawyer and the client. Canons 14-22 14. Not to refuse his services to the needy;
8. 3. Courts A lawyer must maintain towards the court a respectful attitude, defend against unjust criticisms, uphold the courts authority and dignity, obey court orders and processes, assists in the administration of justice. (Canon 10-13, CPR) Clients The lawyer owes entire devotion to the interest of his client, warm and zeal in the maintenance of the defense of his rights and exertion of utmost learning ability to the end that nothing be taken or withheld from his client except in accordance with law. He owes a duty of competent and zealous representation to the client, and should preserve his clients secrets, preserve his funds and property and avoid conflicts of interest. (Canon 1422, CPR) CANONS OF PROFESSIONAL. RESPONSIBILITY (Overview). Chapter 1. Lawyer and Society.
9.
4.
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15. Observe candor, fairness and loyalty in all his dealings and transactions with clients 16. Hold in trust all the moneys and property of his client that may come to his possession 17. Owes fidelity to clients cause and be mindful of the trust and confidence reposed in him 18. Serve client with competence and diligence 19. Represent client with zeal and within the bounds of law 20. Charge only fair and reasonable fees; 21. Preserve the confidence and secrets of client even after the attorney-client relation is terminated 22. Withdraw services only for good cause and upon notice Q: What is the first and most important duty of an attorney? Why? A: The first and most important duty of the lawyer is his duty to the court. The reason is that the attorney is an officer of the court. He is an officer of the court in the sense that his main mission is to assist the court in the administering of justice. His public duties take precedence over his private duties. Q: How should a lawyer view representation of the poor, the marginalized, and the oppressed before our courts of justice? A: As an officer of the court, the lawyer has the duty of representing the poor, the marginalized and the oppressed without expecting to be compensated for his services. One of the main duties of the lawyer is to maintain the rule of law. The rule of law cannot be maintained if the poor, the marginalized or the oppressed are not afforded legal services to protect their rights against the rich and the privileged. The lawyer should consider it as a duty and not as a charitable work. (1988 Bar Question)
Note: The duty of a counsel de oficio is to render effective service and to exert his best efforts on behalf of an indigent accused. He has a high duty to a poor litigant as to a paying client. (1991, 1993, 1994, 1996, 1998, 2001, 2002, 2004 Bar Questions) and regulations enforcing or implementing existing laws. (CPR Annotated, PhilJA) Legal processes pertain to all the proceedings in an action or proceeding. (CPR Annotated, PhilJA)
CANON 1, CPR - A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND, AND PROMOTE RESPECT FOR LAW AND FOR LEGAL PROCESSES.
Q: What is the two-fold duty imposed by the Canon 1 of the Canons of Professional Responsibility? A: 1. 2. Personally obey the laws and the legal processes; and Inspire respect and obedience thereto. (CPR Annotated, PhilJA)
Note: The portion of Canon 1 which calls for lawyers to promote respect for law and for legal processes is a call to uphold the Rule of Law. (Funan, 2009) Q. What is the Rule of Law? A: The supremacy of the law. It provides that decisions should be made by the application of known legal principles or laws without the intervention of discretion in their application. (Blacks Law Dictionary) Note: The lawyers duty to uphold the Constitution, the laws and the rule of law is imposed upon him at the very moment he becomes a lawyer after reciting the lawyers oath of office. All lawyers therefore are sworn constitutionalists. (Funa, 2009) A lawyers oath to uphold the cause of justice is superior to his duty to his client; its primacy is indisputable. (Cobb-Perez v. Lantin, No. L-22320, July 29, 1968)
Q. Peter Donton filed a complaint against Atty. Emmanuel Tansingco and others, as the notary public who notarized the Occupancy Agreement, for estafa thru falsification of public document. Atty. Tansingco in his complaint stated that he prepared and notarized the Occupancy Agreement at the request of Mr. Stier, an owner and long-time resident of a real property located at Cubao, Quezon City. Since Mr. Stier is a U.S. Citizen and thereby disqualified to own real property in his name, he agreed that the
A. LAWYER AND THE SOCIETY 1. RESPECT FOR LAW AND LEGAL PROCESSES
Note: Laws refers to all laws, and not just those of general application. Thus, they include presidential decrees, executive orders, and administrative rules
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property be transferred in the name of Mr. Donton, a Filipino. Donton averred that Atty. Tansingcos act of preparing the Occupancy Agreement, despite knowledge that Stier is a foreign national, constitutes serious misconduct and is a deliberate violation of the Code. Donton prayed that Atty. Tansingco be disbarred. Is Atty. Tansingco guilty of serious misconduct? A. Yes. Atty. Tansingco is liable for violation of Canon 1 and Rule 1.02 of the Code. A lawyer should not render any service or give advice to any client which will involve defiance of the laws which he is bound to uphold and obey. Atty. Tansingco had sworn to uphold the Constitution. Thus, he violated his oath and the Code when he prepared and notarized the Occupancy Agreement to evade the law against foreign ownership of lands. Atty. Tansingco used his knowledge of the law to achieve an unlawful end. Such an act amounts to malpractice in his office, for which he may be suspended. (Donton v. Atty. Tansingco, A.C. No. 6057, June 27, 2006) Q: Prosecutor Coronel entered his appearance on behalf of the State before a Family Court in a case for declaration of nullity of marriage, but he failed to appear in all the subsequent proceedings. When required by the Department of Justice to explain, he argued that the parties in the case were ably represented by their respective counsels and that his time would be better employed in more substantial prosecutorial functions, such as investigations, inquests and appearances in court hearings. Is Atty. Coronels explanation tenable? A: Atty. Coronels explanation is not tenable. The role of the States lawyer in nullification of marriage cases is that of protector of the institution of marriage (Art 48, FC). The task of protecting marriage as an inviolable social institution requires vigilant and zealous participation and not mere pro forma compliance (Malcampo-Sin v. Sin, G.R. No. 137590, Mar. 26, 2001). This role could not be left to the private counsels who have been engaged to protect the private interest of the parties. (2006 Bar Question) Rule 1.01, Canon 1, CPR: A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Q: What are the acts punishable under this Rule? A: Act which are unlawful, dishonest, immoral or deceitful. Q: Define Unlawful Conduct. A: It refers to a transgression of any provision of law which need not be a penal law. The presence of evil intent on the part of the lawyer is not essential in order to bring his act or omission within the terms of this Rule. Q: Define Dishonest Conduct. A: Dishonest conduct refers to the disposition to lie, cheat, deceive, defraud, or betray; be untrustworthy; lacking in integrity, honesty, probity, integrity in principle, fairness and straightforwardness. Q: Define Immoral Conduct. A: Immoral Conduct refers to a conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community. To warrant disciplinary action, the act must not only be merely immoral but GROSSLY IMMORAL.
Note: Grossly immoral conduct is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree. (Figueroa v. Barranco, SBC Case No. 519, July 31, 1997)
Q: What are the instances of Gross Immorality and the resulting consequences? A: 1. Abandonment of wife and cohabiting with another woman. DISBARRED. (Obusan v. Obusan, Jr., Adm. Case No. 1392 April 2, 1984) A lawyer who had carnal knowledge with a woman through a promise of marriage which he did not fulfill. DISBARRED. (In re: Disbarment of Armando Puno, A.C. No. 389,February 28, 1967) Seduction of a woman who is the niece of a married woman with whom respondent lawyer had an adulterous relation. DISBARRED. (Royong v. Oblena, A.C. No. 376, April 30, 1963) Lawyer arranging marriage of his son to a woman with whom the lawyer had illicit relations. DISBARRED. (Mortel v. Aspiras,A.M. No. 145, December 28, 1956)
2.
3.
4.
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5. Lawyer inveigling a woman into believing that they have been married civilly to satisfy his carnal desires. DISBARRED. (Terre v. Terre, A.M. No. 2349 July 3, 1992) Lawyer taking advantage of his position as chairman of the college of medicine and asked a lady student to go with him to Manila where he had carnal knowledge of her under threat that if she refused, she would flunk in all her subjects. DISBARRED. (Delos Reyes v. Aznar, A.M. No. 1334 November 28, 1989) Bigamy perpetrated by the lawyer. DISQUALIFIED FROM ADMISSION TO THE BAR. (Royong vs. Oblena, A.C. No. 376, April 30, 1963) Concubinage coupled with failure to support illegitimate children. SUSPENDED INDEFINITELY. (Laguitan v. Tinio, A.M. No. 3049, December 4, 1989) Maintaining adulterous relationship with a married woman. SUSPENDED INDEFINITELY. (Cordova v. Cordova, A.M. No. 3249, November 29, 1989) A retired judge who penned a decision 7 months after he retired, antedating the decision and forcing his former court staff to include it in the expediente of the case. DISBARRED. (Radjaie v. Alovera, A.C. No. 4748, August 4,2000) Forging a Special Power of Attorney. SUSPENDED FOR 3 YEARS. (Rural Bank of Silay, Inc. v. Pilla, A.C. No. 3637, January 24,2001) Attempting to engage in an opium deal SUSPENDED FOR 1 YEAR. ( Piatt v. Abordo, 58 Phil. 350, September 1, 1933) Facilitating the travel of a person to the U.S. using spurious travel documents. DISBARRED. (Sebastian v. Calis, A.C. No. 5118, September 9, 1999) A: Yes. A member of the bar may be removed or suspended from office as an attorney for any deceit, malpractice, or misconduct in office. The word "conduct" used in the rules is not limited to conduct exhibited in connection with the performance of the lawyer's professional duties but it also refers to any misconduct, although not connected with his professional duties, that would show him to be unfit for the office and unworthy of the privileges which his license and the law confer upon him. The grounds expressed in Section 27, Rule 138, of the Rules of Court are not limitative and are broad enough to cover any misconduct, including dishonesty, of a lawyer in his professional or private capacity. Such misdeed puts his moral fiber, as well as his fitness to continue in the advocacy of law, in serious doubt. Atty.Adaza's issuance of worthless checks and his contumacious refusal to comply with his just obligation for nearly eight years is appalling and hardly deserves compassion from the Court. (Orbe v. Atty. Adaza, A.C. No. 5252, May 20, 2004) Q: Atty. Danilo Velasquez was charged before IBP Committee on Bar Discipline with Gross Misconduct and Gross Immoral Conduct by complainant Mecaral. Complainant Mecaral was his secretary and she became his lover and common-law wife. Atty. Velasquez then brought her to the mountainous Upper San Agustin in Caibiran, Biliran where he left her with a religious group known as the Faith Healers Association of the Philippines, of which he was the leader. Although he visited her daily, his visits became scarce, prompting her to return home to Naval, Biliran. Furious, Atty. Velasquez brought her back to San Agustin where, on his instruction, his followers tortured, brainwashed and injected her with drugs. When she tried to escape, the members of the group tied her spread-eagled to a bed. Made to wear only a Tshirt and diapers and fed stale food, she was guarded 24 hours a day by the women members. Her mother sought the help of the Provincial Social Welfare Department which immediately dispatched two women volunteers to rescue her. The religious group refused to release her, however, without the instruction of Atty. Velasquez. Is Atty. Velasquez guilty of gross immoral conduct and violated Canon 1 of the Code of Professional Responsibility? A: Yes. Atty. Velasquez act of converting his secretary into a mistress is grossly immoral which no civilized society in the world can countenance. The subsequent detention and torture of the complainant is gross misconduct [which] only a
6.
7.
8.
9.
10.
11.
12.
13.
Q: Atty. Adaza obtained a loan from Orbe with interest. He then issued two checks as installment. However, the first check was dishonored. The other check was not accepted for being a stale check. Efforts were exerted by Orbe to see him but her efforts turned to be futile. After a criminal case was filed, Atty. Adaza went to Orbes house and promised to pay the checks. Orbe then agreed to have the service of the warrant of arrest withheld but, again, Atty. Adaza failed to make good of his promise. Did the act of Atty. Adazas in issuing worthless checks constitute gross misconduct?
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beast may be able to do. Certainly, the Atty. Velasquez had violated Canon 1 of the Code of Professional Responsibility. When a lawyers moral character is assailed, such that his right to continue practicing his cherished profession is imperiled, it behooves him to meet the charges squarely and present evidence, to the satisfaction of the investigating body and this Court, that he is morally fit to keep his name in the Roll of Attorneys. Atty. Velasquez has not discharged the burden. (Mecaral v. Velasquez, A.C. No. 8392, June 29, 2010) Q: What are the acts which do not constitute gross immorality? A: 1. 2. 3. Stealing a kiss from a client (Advincula v. Macabata, A.C. No. 7204, March 7, 2007) Live-in relationship involving two unmarried persons Failure to pay a loan - A lawyer may not be disciplined for failure to pay a loan. The proper remedy is the filing of an action for collection of a sum of money in regular courts (Toledo v. Abalos, A.C. No. 5141, September 29, 1999)
Exception: A deliberate failure to pay just debts and the issuance of worthless checks (Lao v. Medel, A.C. No. 5916 July 1, 2003) Having incurred just debts, a lawyer has the moral duty and legal responsibility to settle them when they become due. He should comply with his just contractual obligations, act fairly and adhere to high ethical standards to preserve the courts integrity, since he is an employee thereof. (Cham v. Paita-Moya, A.C. No.7494, June 27, 2008). Note: Just debts include unpaid rentals, electric bills, claims adjudicated by a court of law, and claims the existence and justness which are admitted by the debtor (Cham v. Paita-Moya, A.C. No.7494 June 27, 2008)
embodied in mans conscience and which guides him to do good and avoid evil.
shows a moral indifference to the opinion of the good and respectable members of the community (Arciga v. Maniwang, A.M. No. 1608, Aug. 14, 1981).
Q: Define deceitful conduct. A: An act that has the proclivity for fraudulent and deceptive misrepresentation, artifice or device that is used upon another who is ignorant of the fact, to the prejudice and damage of the party imposed upon. (CPR Annotated, PhilJA)
Note: By indicating IBP Rizal 259060 in his pleadings and thereby misrepresenting to the public and the courts that he had paid his IBP dues to the Rizal Chapter, Atty. Llamas is guilty of violating the Code of Professional Responsibility which provides: Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. His act is also a violation of Rule 10.01 which provides that: A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor mislead or allow the court to be misled by any artifice. (Santos Jr. v. Atty. Llamas, A.C. No. 4749, Jan. 20, 2000)
Q: Atty. Limon was Docenas lawyer in a civil case. During that case, he asked Docena to post a supersedeas bond to stay execution of the appealed decision. Docena forwarded the money to Atty. Limon. Later, the case was decided in their favor. They were unable to recover the money because the clerk of court said no such bond had ever been filed. IBP suspended Atty. Limon for one year. Is disbarment warranted? A: Yes. Atty. Limons allegation that the money was payment of his fees was overcome by other evidence. The law is not a trade nor craft but a profession. Its basic ideal is to render public service and to secure justice for those who seek its aid. If it has to remain an honorable profession and attain its basic ideal, lawyers should not only master its tenets and principles but should also, by their lives, accord continuing fidelity to them. By extorting money from his client through deceit, Limon has sullied the integrity of his brethren in the law and has indirectly eroded the peoples confidence in the judicial system. He is disbarred for immoral, deceitful and unlawful conduct. (Docena v. Atty. Limon, A.C. No. 2387, Sept. 10, 1998)
Q: Differentiate morality from immoral conduct and grossly immoral conduct. A: Morality as understood in law is a human standard based on natural moral law which is
Immoral conduct has been defined as that conduct which is willful, flagrant, or shameless and which
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Q: Atty. Llorente and Atty. Salayon were election officers of the COMELEC. They helped conduct and oversee the 1995 elections. Then Senatorial candidate Pimentel, Jr. alleged that Atty. Llorente and Atty. Salayon tampered with the votes received by him. Pimentel Jr. filed an administrative complaint for their disbarment. The two lawyers argued that the discrepancies were due to honest mistake, oversight and fatigue. They also argued that the IBP Board of Governors had already exonerated them from any offense and that the motion for reconsideration filed by Pimentel Jr. was not filed in time. Are Attys. Llorente and Salayon guilty of violating the Code of Professional Responsibilities? A: Yes. Atty. Llorente and Atty. Salayon do not dispute the fact that massive irregularities attended the canvassing of the Pasig City election returns. The only explanation they could offer for such irregularities is that the same could be due to honest mistake, human error, and/or fatigue on the part of the members of the canvassing committees who prepared the Statements of Votes (SOVs). There is a limit, we believe, to what can be construed as an honest mistake or oversight due to fatigue, in the performance of official duty. Here, by certifying as true and correct the SoVs in question, Atty. Llorente and Atty. Salayon committed a breach of Rule 1.01 of the Code which stipulates that a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. By express provision of Canon 6, this is made applicable to lawyers in the government service. In addition, they likewise violated their oath of office as lawyers to do no falsehood. (Pimentel, Jr. v. Atty. Llorente and Atty. Salayon, A.C. No. 4680, Aug. 29, 2000) Q: An administrative complaint for disbarment against Atty. Iris was filed for allegedly carrying an immoral relationship with Carlos, husband of complainant Leslie. Atty. Iris contended that her relationship with Carlos is licit because they were married. And when she discovered Carlos true civil status she cut off all her ties with him. Is Atty. Iris guilty of committing gross immoral conduct warranting her disbarment? A: No, her relationship with Carlos, clothed as it was with what Atty. Iris believed was a valid marriage, cannot be considered immoral. Immorality connotes conduct that shows indifference to the moral norms of the community. Moreover for such conduct to warrant disciplinary action, the same must be grossly immoral, that is it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree. Atty. Iris act of immediately distancing herself from Carlos upon discovering his true civil status belies that alleged moral indifference and proves that she had no intention of flaunting the law and the high moral standard of the legal profession. (Ui v. Atty Bonifacio, A.C. No. 3319, June 8, 2000) Q: Catherine and Atty. Rongcal maintained an illicit affair. Catherine filed a case for disbarment against Atty. Rongcal based on gross immoral conduct alleging that he misrepresented himself to be single when he was in fact married, and due to the false pretenses she succumbed to his sexual advances. Will her petition prosper? A: Yes. Good moral character is a continuing condition in a privilege of law practice. The mere fact of sexual relation between two unmarried adults is not sufficient to warrant administrative sanction for such illicit behavior, it is not with respect to betrayal of the marital vow of fidelity. Atty. Rongcal is guilty of immorality in violation of Rule 1.01 that a lawyer should not engage in unlawful, dishonest, immoral or deceitful conduct. But his remorse over his indiscretion and the fact of ending the illicit relationship mitigates the liability. Hence a penalty of imposing a fine will suffice with a warning that the same will be dealt more severely. (Vitug v. Rongcal, A.C. No. 6313, Sept. 7, 2006) Q: Patricia and Simeon were teen sweethearts. It was after their child was born that Simeon first promised he would marry her after he passes the bar examinations. Their relationship continued and Simeon allegedly made more than twenty or thirty promises of marriage. Patricia learned that Simeon married another woman. Meanwhile, Simeon successfully passed the 1970 bar examinations after four attempts. But before he could take his oath, Patricia filed a petition to disqualify Simeon to take the Lawyers Oath on the ground of gross immoral conduct. Does the act of Simeon in engaging in premarital relations with Patricia and making promises to marry her constitute gross immoral conduct? A: SC ruled that the facts do not constitute gross immoral conduct warranting a permanent exclusion of Simeon from the legal profession. His engaging in premarital sexual relations with
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complainant and promises to marry suggests a doubtful moral character on his part but the same does not constitute grossly immoral conduct. The Court has held that to justify suspension or disbarment the act complained of must not only be immoral, but grossly immoral. A grossly immoral act is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree. It is willful, flagrant, or shameless act, which shows a moral indifference to the opinion of respectable members of the community. (Figueroa v. Barranco, Jr., G.R. No. 97369, July 31, 1997)
Note: Mere intimacy between a man and woman, both of whom possess no impediment to marry, voluntarily carried on and devoid of any deceit on the part of the former, is neither so corrupt nor so unprincipled as to warrant the imposition of disciplinary sanction against him, even if as a result of such relationship a child was born out of wedlock. (CPR Annotated, PhilJA)
6.
Conviction of falsification of public document. REMOVED FROM HIS OFFICE/NAME ERASED FROM ROLL OF ATTORNEYS. (Ledesma de Jesus-Paras v. Quinciano Vailoces,A.C. No. 439, April 12,1961) 7. Conviction of estafa through falsification of public document. DISBARRED. (Villanueva v. Sta. Ana, CBD Case No. 251, July 11, 1995) 8. Conviction of abduction. SUSPENDED FROM OFFICE FOR 1 YEAR. (In Re Basa, 41 Phil. 275, December 7,1920) 9. Conviction of concubinage. SUSPENDED FROM OFFICE FOR 1 YEAR. (In re Isada, 60 Phil. 915, November 16,1934) 10. Conviction of smuggling. DISBARRED. (In re Rovero, A.C. No. 126, October 24,1952)
Note: Moral turpitude implies something immoral regardless of the fact that it is punishable by law or not. It must not merely be mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not the its prohibition by statute fixes the moral turpitude. (Zari v. Flores, Adm. Matter No. 2170-MC P-1356)
Q: Define moral turpitude. A: Moral turpitude imports an act of baseness, vileness or depravity in the duties which one person owes to another or to society in general which is contrary to the usual accepted and customary rule of right and duty which a person should follow. The question as to whether an offense involves moral turpitude is for the Supreme Court to decide. (1992, 1993, 1997, 2004 Bar Questions) Q: What are examples of acts that involve moral turpitude and their consequences? A: 1. Conviction of estafa and/or BP 22. DISBARRED. (In the Matter of Disbarment Proceedings v. Narciso N. Jaramillo, A.C. No. 229, April 30,1957) Conviction of bribery/ attempted bribery. DISBARRED. (In Re: Dalmacio De los Angeles, A.C. No. L-350, Angust 7,1959); 7 C.J.S., p. 736;5 Am. Jur. P. 428) Conviction of murder. DISBARRED. (In Re: Disbarment Proceedings Against Atty. Diosdado Q. Gutierrez,A.C. No.L- 363, July 31,1962) Conviction of homicide. DISBARRED. (Soriano v. Dizon, A.C. No. 6792, January 25,2006) Conviction of illegal marriage before admission to the bar. DISQUALIFIED FROM BEING ADMITTED TO THE BAR. (Villasanta v. Peralta, 101 Phil.313, April 30, 1957)
Q: Resurreccion as defendant delivered to Atty. Sayson an amount representing the compensation or settlement money in a case for homicide thru reckless imprudence. However, Atty. Sayson did not turn over the amount to his client, forcing Resurreccion to pay the same amount again. Atty. Sayson was later convicted for estafa. Should Atty. Sayson be disbarred? A: Yes. Good moral character is not only a condition precedent to admission to the legal profession, but it must also remain extant in order to maintain ones good standing in that exclusive and honored fraternity. Act of moral turpitude (i.e. done contrary to justice, honesty & good morals) such as estafa or falsification renders one unfit to be a member of the legal profession. (Resurreccion v. Atty. Sayson, G.R. No. 88202, Dec. 14, 1998)
Note: When lawyers are convicted of frustrated homicide, the attending circumstances, not the mere fact of their conviction would demonstrate their fitness to remain in the legal profession. (Soriano v. Dizon, A.C. No. 6792, Jan. 25, 2006)
2.
3.
4.
5.
Rule 1.02, Canon 1, CPR A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. (1994, 1998 Bar Questions)
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Note: A lawyer should not promote nor hold an organization known to be violating the law nor assist it in a scheme which is dishonest. He should not allow his services to be engaged by an organization whose members are violating the law and defend them should they get caught.
4.
5. 6.
Q: Atty. Asilo, a lawyer and a notary public, notarized a document already prepared by spouses Roger and Luisa when they approached him. It is stated in the document that Roger and Luisa formally agreed to live separately from each other and either one can have a live-in partner with full consent of the other. What is the liability of Atty. Asilo, if any? A: Atty. Asilo may be held administratively liable for violating Rule 1.02 of the CPR - a lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. An agreement between two spouses to live separately from each other and either one could have a live-in partner with full consent of the other, is contrary to law and morals. The ratification by a notary public who is a lawyer of such illegal or immoral contract or document constitutes malpractice or gross misconduct in office. He should at least refrain from its consummation. (In Re: Santiago, A.C. No. 923, June 21, 1940; Panganiban v. Borromeo, 58 Phil. 367; In Re: Bucana, A.C. No. 1637, July 6, 1976) (1998 Bar Question) Rule 1.03, Canon 1, CPR A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any mans cause.
Note: Aimed against the practice of barratry, stirring up litigation and ambulance chasing.
7.
Paying direct or indirect reward to those who bring or influence the bringing of such cases to his office Searching for unknown heirs and soliciting their employment of him Initiating a meeting of a club and inducing them to organize and contest legislation under his guidance Purchasing notes to collect them by litigation at a profit
Q: What is crime of maintenance? A: A lawyer owes to society and to the court the duty not to stir up litigation. Q: What is the difference between barratry and ambulance chasing? A: Barratry is an offense of frequently exciting and stirring up quarrels and suits, either at law or otherwise; lawyers act of fomenting suits among individuals and offering his legal services to one of them.
Note: Barratry is not a crime under the Philippine laws. However, it is proscribed by the rules of legal ethics. (CPR Annotated, PhilJA)
Ambulance chasing is an act of chasing victims of accidents for the purpose of talking to the said victims (or relatives) and offering his legal services for the filing of a case against the person(s) who caused the accident(s) (1993 Bar Question). It has spawned a number of recognized evils such as (FSMD): 1. 2. 3. Fomenting of litigation with resulting burdens on the courts and the public; Subordination of perjury; Mulcting of innocent persons by judgments, upon manufactured causes of action; and Defrauding of injured persons having proper causes of action but ignorant of legal rights and court procedures by means of contracts which retain exorbitant percentages of recovery and illegal charges for court costs and expenses and by settlement made for quick returns of fees and against just rights of the injured persons (Hightower v. Detroit Edison Co. 247 NW 97, 1993)
Q: Enumerate the unprofessional acts prohibited by Rule 1.03. A: 1. Volunteering advice to bring lawsuit except where ties of blood, relationship and trust make it a duty to do so Hunting up defects in titles or other causes of action and informing thereof to be employed to bring suit or collect judgment, or to breed litigation by seeking out claims for personal injuries or any other grounds to secure them as clients Employing agents or runners for like purposes
4.
2.
3.
Note: Volunteer advice to bring lawsuit comes within the prohibition, except where ties of blood, relationship and trust make it a duty to do so.
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Q: Does the rule absolutely prohibit all forms of voluntary giving of advice? A: No. It may be allowed when the giving of advice is motivated by a desire to protect one who does not recognize that he may have legal problems or who is ignorant of his legal rights or obligations. (CPR Annotated, PhilJA) Q: When does voluntary giving of advice become improper? A: When it is motivated by a desire to obtain personal benefit, secure personal publicity, or cause legal action to be taken merely to harass or injure another. (CPR Annotated, PhilJA) Q: While Atty. Ambo Lancia was on his way to office in Makati, he chanced upon a vehicular accident involving a wayward bus and a small Kia whose driver, a Mr. Malas, suffered serious physical injuries. Coming to the succor of the badly injured Mr. Malas, Atty. Lancia drove him to the nearest hospital. On their way to the hospital, Mr. Malas found out that Atty, Lancia was a practicing lawyer. In gratitude for his help, Mr. Malas retained Atty. Lancia to file suit against the bus company and its driver. If you were Atty. Lancia, would you accept the case? A: I will not accept the case if I were Atty. Lancia because it is difficult to dismiss the suspicion that Atty. Lancia had assisted Mr. Malas for the purpose of soliciting legal business. It is not clear from the facts how Mr. Malas learned that Atty. Lancia was a practicing lawyer. This could have happen only if Atty. Lancia introduced himself as a lawyer. Moreover, Atty. Lancia may be utilized as a witness. (1994 Bar Question) Rule 1.04, Canon 1, CPR A lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement. (2004 Bar Question)
Note: It is the duty of the lawyer to temper his clients propensity to litigate and resist his clients whims and caprices for the lawyer also owes duty to the court. Lawyer should be a mediator for concord and a conciliator for compromise rather than an initiator of controversy and a predator of conflict. The rule requires that lawyers encourage settlement only when the same is fair. It should be noted that the duty and the right of the lawyer is limited to encouraging the client to settle. Ultimately, however, the final decision to settle a claim rests upon the client. (CPR Annotated, PhilJA)
Q: Jon de Ysasi III was employed by his father, in their farm in Negros Occidental. During the entire period of Jon de Ysasi III's illnesses, his father took care of his medical expenses and Jon de Ysasi III continued to receive compensation. However, later on, without due notice, his father ceased to pay Jon de Ysasi IIIs salary. Jon de Ysasi III made oral and written demands from Atty. Sumbingco (Jon de Ysasi's auditor and legal adviser) for an explanation for the sudden withholding of his salary, as well as for the remittance of his salary. Both demands, however, were not acted upon. Jon de Ysasi III filed a case in court. Can the lawyers who have been employed by the parties be admonished for not trying to reconcile the parties before the filing of suit? A: Yes. The conduct of the respective counsel of the parties, as revealed by the records, sorely disappoints the Court and invites reproof. Both counsels may well be reminded that their ethical duty as lawyers to represent their clients with zeal goes beyond merely presenting their clients' respective causes in court. It is just as much their responsibility, if not more importantly, to exert all reasonable efforts to smooth over legal conflicts, preferably out of court and especially in consideration of the direct and immediate consanguineous ties between their clients. Once again, the useful function of a lawyer is not only to conduct litigation but to avoid it whenever possible by advising settlement or withholding suit. He is often called upon less for dramatic forensic exploits than for wise counsel in every phase of life. He should be a mediator for concord and a conciliator for compromise, rather than a virtuoso of technicality in the conduct of litigation. Rule 1.04 of the Code of Professional Responsibility explicitly provides that "a lawyer shall encourage his client to avoid, end or settle the controversy if it will admit of a fair settlement." (De Ysasi v. NLRC, G.R. No. 104599, Mar. 11, 1994) 2. EFFICIENT AND CONVENIENT LEGAL PROCESSES CANON 2, CPR - A LAWYER SHALL MAKE HIS LEGAL SERVICES AVAILABLE IN AN EFFICIENT AND CONVENIENT MANNER COMPATIBLE WITH THE INDEPENDENCE, INTEGRITY AND EFFECTIVENESS OF THE PROFESSION.
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Rationale: It is the lawyers prime duty to see to it that justice is accorded to all without discrimination.
Proposed Rule of Mandatory Legal Aid Service for Practicing Lawyers, the Court Resolved to approve the same. This Resolution shall take effect on July 1, 2009 following publication of the said Rule and its implementing regulations in at least two (2) newspapers of general circulation. Q: What is the rule on Mandatory Legal Aid Service? A: The mandatory Legal Aid Service mandates every practicing lawyer to render a minimum of 60 hours of free legal aid services to indigent litigants yearly.
Note: Rule on Mandatory Legal Aid Service (B.M. No. 2012): Pursuant to an en banc Resolution of the Supreme Court, this Rule took effect on January 1, 2010, provided its implementing regulations have been published prior to the said date.
Rule 2.01, Canon 2, CPR A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed. Q: Who are considered Defenseless? A: Defenseless are those are not in a position to defend themselves due to poverty, weakness, ignorance or other similar reasons. Q: Who are considered Oppressed? A: Oppressed are those who are the victims of the cruelty, unlawful, exaction, domination or excessive use of authority.
Note: By specific authority the court may appoint an attorney to render professional aid to a destitute appellant in a criminal case who is unable to employ an attorney. Correspondingly a duty is imposed upon a lawyer so assigned to render the required service. A lawyer so appointed as counsel for an indigent prisoner, the Canons of Professional Ethics demands, should always exert his best efforts in the indigents behalf. (People v. Estebia, G.R. No. L26868, Feb. 27, 1969) The inability to pay for legal services is not a valid reason to refuse acceptance of a case. This is because the profession is a branch of the administration of justice and not a mere moneygetting trade. (CPR Annotated, PhilJA) Note: A lawyer who accepts the cause of a person unable to pay his professional fees shall observe the same standard of conduct governing his relation with paying client. LEGAL AID IS NOT A MATTER OF CHARITY, BUT A PUBLIC RESPONSIBILITY. It is a means for the correction of social imbalance that may and often do lead to injustice, for which reason it is the public responsibility of the Bar.
Q: What is the purpose of the rule? A: The rule seeks to enhance the duty of lawyers to society as agents of social change and to the courts as officers thereof by helping improve access to justice by the less privileged members of society and expedite the resolution of cases involving them. Mandatory free legal service by members of the bar and their active support thereof will aid the efficient and effective administration of justice especially in cases involving indigent and pauper litigants. (Sec. 2,
B.M. No. 2012)
Q: What is the scope of the rule? A: It shall govern the mandatory requirement for practicing lawyers to render free legal aid services in all cases (whether, civil, criminal or administrative) involving indigent and pauper litigants where the assistance of a lawyer is needed. It shall also govern the duty of other members of the legal profession to support the legal aid program of the Integrated Bar of the Philippines. (Sec 3, B.M. No. 2012) Q: Who are the practicing lawyers for the purpose of this rule? A: Practicing lawyers are members of the Philippine Bar who appear for and in behalf of parties in courts of law and quasi-judicial agencies, including but not limited to the National Labor Relations Commission, National Conciliation and Mediation Board, Department of Labor and Employment Regional Offices, Department of Agrarian Reform Adjudication
Rule on Mandatory Legal Aid Service. BM No. 2012 PROPOSED RULE ON MANDATORY. LEGAL AID SERVICE FOR PRACTICING. LAWYERS. RESOLUTION. (February 10, 2009). Acting on the Memorandum dated January 27, 2009 of Justice (now Chief Justice) Renato C. Corona re: Comment of the Integrated Bar of the Philippines on our Suggested Revisions to the
28

Board and National Commission for Indigenous Peoples. The term practicing lawyers shall exclude: 1. Government employees and incumbent elective officials not allowed by law to practice; Lawyers who by law are not allowed to appear in court; Supervising lawyers of students enrolled in law student practice in duly accredited legal clinics of law schools and lawyers of non-governmental organizations (NGOs) and peoples organizations (POs) like the Free Legal Assistance Group who by the nature of their work already render free legal aid to indigent and pauper litigants; and Lawyers not covered under subparagraphs 1 to 3 including those who are employed in the private sector but do not appear for and in behalf of parties in courts of law and quasi-judicial agencies.(Sec. 4[a], B.M. 2012) Q: What are free legal aid services? A: Free legal aid services refer to appearance in court or quasi-judicial body for and in behalf of an indigent or pauper litigant and the preparation of pleadings or motions. It shall also cover assistance by a practicing lawyer to indigent or poor litigants in court-annexed mediation and in other modes of alternative dispute resolution (ADR). Services rendered when a practicing lawyer is appointed counsel de oficio shall also be considered as free legal aid services and credited as compliance under the Rule. (Sec. 4[d], B.M. 2012) Q: What are the requirements for mandatory legal aid service? A: Under the Rule, a practicing lawyer, among others, shall coordinate with the Clerk of Court or the Legal Aid Chairperson of ones Integrated Bar of the Philippines (IBP) Chapter for cases where the lawyer may render free legal aid service. 1. Every practicing lawyer is required to render a minimum of 60 hours of free legal aid services to indigent litigants in a year. Said 60 hours shall be spread within the period of 12 months, with a minimum of 5 hours of free legal aid services each month. However, where it is necessary for the practicing lawyer to render legal aid service for more than 5 hours in one month, the excess hours may be credited to the said lawyer for the succeeding periods. (Sec. 5[a] first par., B.M. 2012)
Note: For this purpose, a practicing lawyer shall coordinate with the Clerk of Court for cases where he may render free legal aid service. He may also coordinate with the IBP Legal Aid Chairperson of the IBP Chapter to inquire about cases where he may render free legal aid service. In this connection, the IBP Legal Aid Chairperson of the IBP Chapter shall regularly and actively coordinate with the Clerk of Court. (Sec. 5[a] second par., B.M. 2012)
2. 3.
4.
Q: Who are these indigent and pauper litigants? A: Under Section 19, Rule 141, Rules of Court, Indigent litigants are those: 1. Whose gross income and that of their immediate family do not exceed an amount double the monthly minimum wage of an employee; and Who do not own real property with a fair market value as stated in the current tax declaration of more than three hundred thousand (P300,000.00) pesos shall be exempt from the payment of legal fees
2.
Note: A party may be authorized to litigate his action, claim or defense as an indigent if the court upon an ex-parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. (Section 21, Rule 3, RRC)
2.
Q: What does legal aid cases include? A: It includes actions, disputes, and controversies that are criminal, civil and administrative in nature in whatever stage wherein indigent and pauper litigants need legal representation. (Sec. 4[c], B. M.2012)
The practicing lawyer shall report compliance with the requirement within 10 days of the last month of each quarter of the year. (Sec. 5[a] third par., B.M. 2012) A practicing lawyer shall be required to secure and obtain a certificate from the Clerk of Court attesting to the number of hours spent rendering free legal aid services in a case. (Sec. 5[b] B.M. 2012)
3.
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4. Said compliance report shall be submitted to the Legal Aid Chairperson of the IBP Chapter within the Courts jurisdiction. (Sec. 5[c] B.M. 2012) The IBP chapter shall, after verification, issue a compliance certificate to the concerned lawyer. The IBP Chapter shall also submit compliance reports to the IBPs National Committee on Legal Aid (NCLA) for recording and documentation. The submission shall be made within forty-five (45) days after the mandatory submission of compliance reports by the practicing lawyers. (Sec. 5[d] B.M. 2012) Practicing lawyers shall indicate in all pleadings filed before the courts or quasijudicial bodies the number and date of issue of their certificate of compliance for the immediately preceding compliance period. (Sec 5[e] B.M. 2012) compliance period under the Rules on MCLE shall be credited the following: 1. 2. 3. 4. 5. 6. Two (2) credit units for legal ethics Two (2) credit units for trial and pretrial skills Two (2) credit units for alternative dispute resolution Four (4) credit units for legal writing and oral advocacy Four (4) credit units for substantive and procedural laws and jurisprudence Six (6) credit units for such subjects as may be prescribed by the MCLE Committee under Section 2(g), Rule 2 of the Rules on MCLE
5.
6.
A lawyer who renders mandatory legal aid service for the required number of hours in a year for at least two consecutive years within the three yearperiod covered by a compliance period under the Rules on MCLE shall be credited the following: 1. 2. 3. One (1) credit unit for legal ethics One (1) credit unit for trial and pretrial skills One (1) credit unit for alternative dispute resolution Two (2) credit units for legal writing and oral advocacy Two (2) credit units for substantive and procedural laws and jurisprudence Three (3) credit units for such subjects as may be prescribed by the MCLE Committee under Section 2(g), Rule 2 of the Rules on MCLE. (Sec. 8, B.M. 2012)
Q: What should the certificate from the Clerk of Court, attesting the number of hours spent rendering free legal services, contain? A: The certificate shall contain the following information: 1. The case or cases where the legal aid service was rendered, the party or parties in the said case(s), the docket number of the said case(s) and the date(s) the service was rendered 2. The number of hours actually spent 3. The number of hours actually spent attending mediation, conciliation or any other mode of ADR on a particular case 4. A motion (except a motion for extension of time to file a pleading or for postponement of hearing or conference) or pleading filed on a particular case shall be considered as one (1) hour of service. (Sec 5[b] B.M. 2012)
Note: The Clerk of Court shall issue the certificate in triplicate, one (1) copy to be retained by the practicing lawyer, one (1) copy to be retained by the Clerk of Court and one (1) copy to be attached to the lawyer's compliance report. (Sec 5[b][iv]second
4. 5. 6.
Q: What is the sanction in case of noncompliance of the rule on mandatory legal aid service? A: 1. At the end of every calendar year, any practicing lawyer who fails to meet the minimum prescribed 60 hours of legal aid service each year shall be required by the IBP, through the National Committee on Legal Aid (NCLA), to explain why he was unable to render the minimum prescribed number of hours. If no explanation has been given or if the NCLA finds the explanation unsatisfactory, the NCLA shall make a report and recommendation to the IBP Board of Governors that the erring lawyer be declared a member of the IBP who is not in good standing.
par., B.M. 2012) Q: What credits should be given to a lawyer who renders mandatory legal aid service? A: A lawyer who renders mandatory legal aid service for the required number of hours in a year for the three year-period covered by a
2.
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3. Upon approval of the NCLAs recommendation, the IBP Board of Governors shall declare the erring lawyer as a member not in good standing. The notice to the lawyer shall include a directive to pay P4,000.00 penalty which shall accrue to the special find for the legal aid program of the IBP. The not in good standing declaration shall be effective for a period of 3 months from the receipt of the erring lawyer of the notice from the IBP Board of Governors. During the said period, the lawyer cannot appear in court or any quasi-judicial body as counsel. Provided, however, that the not in good standing status shall subsist even after the lapse of the 3-month period until and unless the penalty shall have been paid. Any lawyer who fails to comply with his duties under this Rule for at least 3 consecutive shall be the subject of disciplinary proceedings to be instituted motu proprio by the Committee on Bar Discipline.(Sec. 7, B.M. 2012) 3. Provide relief to the Public Attorneys Office (PAO) and other associations accredited by the Supreme Court from the numerous cases it handles Provide indigent litigants the opportunity to acquire the services of the distinguished law firms and legal practitioners of the country for free Ensure that the right of every individual to counsel as mandated in the Constitution is protected and observed 2
4.
4.
5.
5.
Q: How are the services availed of? A: PAO, Department of Justice (DOJ) and other legal aid clinics accredited by the Supreme Court shall refer pauper litigants to identified lawyers and professional partnerships. PAO, DOJ or the accredited legal aid clinic shall issue a certification that services were rendered by the lawyer or the professional partnership under this act. The certification shall include the cost of the actual services given. Q: What are the incentives given to lawyers rendering free legal services? A: A lawyer or professional partnerships rendering actual free legal services, as defined by the Supreme Court, shall be entitled to an allowable deduction from the gross income, the amount that could have been collected for the actual free legal services rendered or up to ten percent (10%) of the gross income derived from the actual performance of the legal profession, whichever is lower: Provided, That the actual free legal services herein contemplated shall be exclusive of the minimum sixty (60)-hour mandatory legal aid services rendered to indigent litigants as required under the Rule on Mandatory Legal Aid Services for Practicing Lawyers, under BAR Matter No. 2012, issued by the Supreme Court. (Sec. 5, R.A. 9999) Q: What are the salient features of R.A. No. 9999? A: 1. The law will allow indigent litigants to acquire the services of renowned lawyers and law firms for free In exchange for the services rendered by the lawyer or the law firm, they will be given tax incentives equivalent to the cost of the services rendered to the indigent litigant
6.
7.
8.
Note: The falsification of a certificate or any contents thereof by any Clerk of Court or by any Chairperson of the Legal Aid Committee of the IBP local chapter where the case is pending or by the Director of a legal clinic or responsible officer of an NGO (non-governmental organizations) or PO (peoples organizations) shall be a ground for an administrative case against the said Clerk of Court or Chairperson. This is without prejudice to the filing of the criminal and administrative charges against the malfeasor. (Sec. 7[e] B.M. 2012)
AN ACT PROVIDING A MECHANISM FOR FREE LEGAL ASSISTANCE AND FOR OTHER PURPOSES R.A. NO. 9999 FEB. 23, 2010
Note: Otherwise known as the Free Legal Assistance Act of 2010. (Sec. 1, R.A. 9999)
Q: What are the purposes of R.A. No. 9999? A: To: 1. Encourage lawyers and professional partnerships to provide free legal assistance 2. Solicit the assistance of lawyers and professional partnerships in the private practice of law in providing quality legal assistance to indigent litigants through a system of tax incentives
2.
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3. It will help relieve the Public Attorneys Office (PAO) of its numerous case load involving indigent litigants who shall be referred to lawyers or law firms in the private practice It should entice renowned and distinguished firms and lawyers in the practice as their services shall still be compensated commensurately through the tax incentives
Note: The DOJ, in cooperation with the Philippine Information Agency (PIA), is hereby mandated to conduct an annual Information, Education and Communication (IEC) campaign in order to inform the lawyers of the procedures and guidelines in availing tax deductions and inform the general public that a free legal assistance to those who cannot afford counsel is being provided by the State. (Sec. 6, R.A. 9999)
A: It is not a business because it is a: 1. Relation, as an officer of the court, to the administration of justice involving thorough sincerity, integrity and reliability Duty of public service Relation to clients with the highest degree of fiduciary Relation to the colleagues at the bar characterized by candor, fairness, and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients. (2006 Bar Question)
4.
2. 3. 4.
Note: The best type of advertisement for a lawyer is a well-deserved reputation for competence, honestly and fidelity to private trust and public duty.
Rule 2.02, Canon 2, CPR In such cases, even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to safeguard the latters rights. Q: What does rendering of legal advice include? A: It shall include preliminary steps that should be taken, at least, until the person concerned has obtained the services of a proper counsels representation. Even though no attorney-client relationship is created between the parties, the lawyer, by providing interim advice, preserves the dignity of the profession by inspiring public faith in the profession. (CPR Annotated, PhilJA)
Note: If only to the extent necessary to safeguard the latters right means such as advising him what preliminary steps to take until he shall have secured the services of counsel. However, he shall refrain from giving this preliminary advice if there is a conflict of interest between a present client and a prospective one. Extending such legal advice will create and establish an attorney-client relationship between them and may involve a violation of the rule prohibiting a lawyer from representing conflicting interest.
Q: Atty. David agreed to give of his professional fees to an intermediary or commission agent and he also bound himself not to deal directly with the clients. Can he be subject to disciplinary action? A: Yes. The agreement is void because it was tantamount to malpractice which is the practice of soliciting cases of law for the purpose of gain either personally or through paid agents or brokers. Malpractice ordinarily refers to any malfeasance or dereliction of duty committed by a lawyer. The meaning of malpractice is in consonance with the notion that the practice of law is a profession not a business. The lawyer may not seek or obtain employment by himself or through others, to do so would be unprofessional. (Tan Tek Beng v. David, A. C. No. 1261, Dec. 29, 1983) Q: Are advertisements of lawyers and law firms allowed in Philippine jurisdiction? A: GR: No advertisements allowed. The most worthy and effective advertisement possible is the establishment of a well-merited reputation for professional capacity and fidelity to trust.
Note: Lawyers may not advertise their services or expertise nor should they resort to indirect advertisements for professional employment, such as furnishing or inspiring newspaper comments, or procuring his photograph to be published in connection with causes in which the lawyer has been engaged or concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer's position, and all other self-laudation.
Rule 2.03, Canon 2, CPR A lawyer shall not do or permit to be done any act designated primarily to solicit legal business. (1997 Bar Question) Q: Why is legal profession not considered as a business?
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Note: Advertising is NOT malum in se and what the prohibition tries to prevent is advertising that tends to degrade the dignity of the profession.
A: 1. 2. 3. 4. 5. The profession is primarily for public service; Commercializes the profession Involves self-praise and puffing Damages public confidence May increase lawsuits and result in needless litigation
XPN: LEPO-LABAN-PD 1. Reputable Law lists, in a manner consistent with the standards of conduct imposed by the canons, of brief biographical and informative data, are allowed. 2. Advertisements or simple announcement of the Existence of a lawyer or his law firm posted anywhere it is proper such as his place of business or residence except courtrooms and government buildings. 3. Ordinary simple Professional Card. It may contain only a statement of his name, the name of the law firm which he is connected with, address, telephone number and the special branch of law practiced. 4. A simple announcement of the Opening of a law firm or of changes in the partnership, associates, firm name or office address, being for the convenience of the profession, is not objectionable. 5. Advertisements or announcement in any Legal publication, including books, journals, and legal magazines and in telephone directories. (Ulep v. Legal Clinic, Inc., B.M. No. 553, June 17, 1993) 6. Writing legal Articles 7. Engaging in Business and other occupations except when such could be deemed improper, be seen as indirect solicitation or would be the equivalent of a law practice 8. Activity of an association for the purpose of legal representation. 9. Notice to other local lawyers and publishing in a legal journal of ones availability to act as an associate for them 10. Seeking a Public office, which can only be held by a lawyer or, in a dignified manner, a position as a full time corporate counsel 11. Listing in a phone Directory, but not under a designation of a special branch of law. (Atty. Khan Jr. v. Atty. Simbillo, A.C. No. 5299, Aug. 19, 2003) Q: What is the rationale for the prohibition on advertisements?
Note: It is highly unethical for an attorney to advertise his talents or skill as a merchant advertises his wares. (In re: Tagorda, 53 Phil 42, Mar. 23, 1929)
Q: What solicitation? A: 1. 2.
activities
constitute
indirect
Writing and selling for publication articles of general nature on legal subjects Writing unsolicited article on a legal subject.
Note: If engaged in another profession or occupation concurrently with the practice of law, the lawyer shall make clear to his client whether he is acting as a lawyer or in another capacity.
Q: Atty. Dulcinea writes a regular column in a newspaper of general circulation and articles on unforgettable legal stories in a leading magazine. Her by-line always includes the name of her firm where she is a name partner. Would you consider this as improper advertising? Explain your answer. A: Atty. Dulcineas by-line including the firm name where she belongs is improper because it is an indirect way of solicitation or is an advertisement of the law firm. Q: A paid advertisement appeared in the July 5, 2000 issue of Philippine Daily Inquirer, which reads: "ANNULMENT' OF MARRIAGE Specialist 532-4333/521-2667." Similar advertisements were published in the August 2 and 6, 2000 issues of the Manila Bulletin and August 5, 2000 issue of The Philippine Star. A staff member of the SC called up the published telephone number and pretended to be an interested party. She spoke to Mrs. Simbillo, who claimed that her husband, Atty. Simbillo, was an expert in handling annulment cases and can guarantee a court decree within four to six months, provided the case will not involve separation of property or custody of children. Mrs. Simbillo also said that her husband charges a fee of P48,000.00, half of which is payable at
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the time of filing of the case and the other half after a decision thereon has been rendered. Does the appearance of the following: "ANNULMENT' OF MARRIAGE Specialist 5324333/521-2667", in a newspaper, amount to advertising and solicitation of legal services prohibited by the Code of Professional Responsibility and the Rules of Court? A: Yes. It has been repeatedly stressed that the practice of law is not a business. It is a profession in which duty to public service, not money, is the primary consideration. Lawyering is not primarily meant to be a money-making venture, and law advocacy is not a capital that necessarily yields profits. The gaining of a livelihood should be a secondary consideration. The duty to public service and to the administration of justice should be the primary consideration of lawyers, who must subordinate their personal interests or what they owe to themselves. (Atty. Khan Jr. v. Atty. Simbillo, A.C. No. 5299, Aug. 19, 2003)
Note: The rule against solicitation applies to a lawyer who offers monetary reward to those who can serve as witness/es in the case, which he is handling. (CPR Annotated, PhilJA) Note: Solicitation of employment is a ground for suspension or disbarment.
conference at the lawyers office, an amicable settlement was actually reached by the parties. Did the lawyer commit an infraction of professional ethics? Explain. A: There is no infraction of professional ethics. It does not appear from the facts that the lawyer who helped to settle the matter amicably had in view the retention of his services for a possible litigation or payment, promise or discharge of consideration in his favor. If all that the lawyer did was to help settle the matter amicably, then he should even be commended for helping contending parties avoid a lawsuit. But if the purpose of the lawyer in helping to settle the matter amicably is to charge a fee or to carry favor by judging one side against the other, then he is guilty of improper solicitation, which is unethical. (1986 Bar Question) Rule 2.04, Canon 2,CPR A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant. (1997, 2005 Bar Questions) Q: Dante wants to file a case against his wife for support; he secured the services of Atty. Reyes, his cousin and a private practitioner. However, Dante does not have sufficient money to pay for legal services. Nevertheless, Atty. Reyes accepted the case and promised to charge a lower rate. Did Atty. Reyes violate the Code of Professional Responsibilities? A: No, Atty. Reyes did not violate the CPR. GR: A lawyer shall not charge rates lower than those customarily prescribed. XPN: When clients are relatives, co-lawyers, or are indigents. These are the valid justifications. The case of Dante falls under the valid justifications, so Atty. Reyes did not commit any unethical act.
Note: What the rule prohibits is a competition in the matter of charging professional fees for the purpose of attracting clients in favor of the lawyer who offers lower rates. The rule does not prohibit a lawyer from charging a reduced fee or none at all to an indigent. (Comments of the IBP Committee)
Q: Facing disciplinary charges for advertising as a lawyer, Atty. A argues that although the calling card of his businessman friend indicates his law office and his legal specialty, the law office is located in his friends store. Decide. A: This appears to be a circumvention of the prohibition on improper advertising. There is no valid reason why the lawyers businessman friend should be handling out calling cards which contains the lawyers law office and legal specialty, even if his office is located in his friends store. What makes it more objectionable is the statement of his supposed legal specialty. (2001 Bar Question) Q: A lawyer who had just paid his bill at a respectable car repair shop noticed that another customer was having a heated argument with the shop manager. It turned out that the customers car which was undergoing repair had been driven by one of the shop employees and had crashed against another car which was also being repaired. The lawyer approached the two who are arguing, identified himself as a practicing lawyer, and volunteered to help settle the matter amicably. At a subsequent
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3. TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION ON LEGAL SERVICES CANON 3, CPR - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION OR STATEMENT OF FACTS (1993,1997,1998,2001,2002,2003 Bar Questions) Rationale: The practice of law is not a trade like the sale of commodities to the general public where the usual exaggerations in trade, when the proper party had the opportunity to know the facts, are not in themselves fraudulent.
A: 1. 2. Misstatements of fact Suggestions that the ingenuity or prior record of a lawyer rather than the justice of the claim are the principal factors likely to determine the result Inclusion of information irrelevant on selecting a lawyer Representations concerning the quality of service, which cannot be measured or verified. (CPR Annotated, PhilJA)
3. 4.
Q: Is giving of advice on legal matters through the medium of a newspaper column or radio or television broadcast improper? A: Yes, as giving of legal advice through such medium cannot be undertaken by a layman because that service constitutes practice of law. Nor can it be undertaken by a lawyer because that work involve indirect advertising, violation of the confidential relation of attorney and client, and a breach of the traditional standards of the profession. (Agpalo, Legal and Judicial Ethics) Q: Atty. E has a daily 10-minute radio program billed as a Court of Common Troubles. The program is advertised by the radio station as a public service feature for those who seek but cannot afford to pay for legal advice. Its sponsors include a food processing company and a detergent manufacturing firm which share with the radio station the monthly remuneration of Atty. E. Is there any impropriety in Atty. Es role under the above arrangement? A: Giving advice on legal matters through the medium of a newspaper column or radio station or television broadcast is improper. It would involve indirect advertising and violation of the confidential relation between the lawyer and the client. (Agpalo, Legal Ethics) (1997 Bar Question) Rule 3.01, Canon 3, CPR A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services. (1997 Bar Question) Q: Cite some examples of information in lawyer advertising, that could be considered deceptive.
Q: Atty. Lana a famous family lawyer, asked his secretary to draft the contents of his new calling card. The secretary inserted in such draft the phrase, the best family lawyer in the Philippines. The draft was checked by Atty. Lana and approved it. The new calling cards were then made and Atty. Lana gave it to prospective clients. Did Atty. Lana commit any unethical act? A: Yes, under Rule 3.01 of CPR, violation of Rule 3.01 is unethical, whether done by him personally or through another with his permission. Rule 3.02, Canon 3, CPR In the choice of a firm name, no false, misleading or assumed name shall be used. The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased. (1994, 1996, 2001 Bar Questions) Q: What is the reason in allowing a firm to use the name of a deceased partner? A: All the partners have by their joint and several efforts over a period of years contributed to the good will attached to the firm name. In the case of a firm having widespread connections, this good will is disturbed by a change in firm name every time a partner dies, and that reflects a loss in some degree of the good will to the building up of which the surviving partners have contributed their time, skill and labor through a period of years. (CPR Annotated, PhilJA)
Note: The doctrine in, In the matter of the petition for authority to continue use of the firm Ozaeta, Romulo, De Leon etc., and petition for authority to continue use of firm name Sycip, Salazar, Feliciano, etc. (July 30, 1979) that a law firm cannot continue using the name of a deceased partner due to the possibility of deception upon the public, is abandoned by Rule 3.02.
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Note: No name not belonging to any of the partners or associates may be used in the firm name for any purpose. Continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased. The use of a cross after the name of the deceased partner is sufficient indication. It is advisable though that the year of the death be also indicated. Note: At the hearing, the respondent admitted that the letterhead of the Cristal-Tenorio Law Office listed Felicismo R. Tenorio Jr., Gerardo A. Panghulan, and Maricris D. Battung as senior partners. She admitted that the first two are not lawyers but paralegals. They are listed in the letterhead of her law office as senior partners because they have investments in her law office. That is a blatant misrepresentation. (Cambaliza v. Atty. CristalTenorio, A.C. No. 6290, July 14, 2004)
the RTC Branch 220 issued an order granting the preliminary injunction as threatened by Atty. Gatdula despite the fact that the MTC, Branch 37 had issued an Order directing the execution of the Decision in Civil Case No. 37-14552. Samonte filed an administrative case for misconduct, alleging that Atty. Gatdula is engaged in the private practice of law. Did Atty. Gatdula violate the Code of Conduct and Ethical Standards for the Public Officials and Employees? A: Yes. Samonte by her failure to appear at the hearings, failed to substantiate her allegation that it was Atty. Gatdula who gave her calling card "Baligod, Gatdula, Tacardon, Dimailig and Celera Law Offices" and that he tried to convince her to change counsels. However, that while Atty. Gatdula vehemently denies Samonte's allegations, he does not deny that his name appears on the calling card attached to the complaint, which admittedly came into the hands of Samonte. The card clearly gives the impression that he is connected with the said law firm. The inclusion/retention of his name in the professional card constitutes an act of solicitation which violates Section 7 sub-par. (b) (2) of R.A. 6713, otherwise known as "Code of Conduct and Ethical Standards for the Public Officials and Employees" which declares it unlawful for a public official or employee to, among others: (2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with official functions. (Samonte v. Gatdula, A.M. No. 99-1292, Feb. 26, 1999) Rule 3.04, Canon 3, CPR - A lawyer shall not pay or give anything of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business.
Note: The purpose of the rule is to prevent some lawyers from gaining an unfair advantage over others through the use of gimmickry, press agentry or other artificial means.
Rule 3.03, Canon 3, CPR Where a partner accepts public office, he shall withdraw from the firm and his name shall be dropped from the firm name unless the law allows him to practice law concurrently. Q: Is a Filipino lawyer allowed to practice under a name of a foreign law firm? A: Filipino lawyers cannot practice law under the name of a foreign law firm, as the latter cannot practice law in the Philippines and the use of a foreign law firm in the country is unethical. (Dacanay v. Baker and McKenzie, A.C. No. 2131, May 10, 1985)
Rationale: To prevent the law firm or partners from making use of the name of the public official to attract business and to avoid suspicion of undue influence.
Q: Samonte alleges that when she went to Branch 220, RTC, Quezon City, to inquire about the reason for the issuance of the temporary restraining order, Atty. Rolando Gatdula (Clerk of Court) blamed her lawyer for writing the wrong address in the complaint for ejectment, and told her that if she wanted the execution to proceed, she should change her lawyer and retain the law office of Atty. Gatdula, at the same time giving his calling card with the name "Baligod, Gatdula, Tacardon, Dimailig and Celera" with office at Rm. 220 Mariwasa Bldg., 717 Aurora Blvd., Cubao, Quezon City, otherwise she will not be able to eject the defendant Dave Knope. Samonte told Atty. Gatdula that she could not decide because she was only representing her sister. To her consternation,
Q: Fiscal Salva conducted the investigation of the case concerning the killing of Monroy, in the session hall of the Municipal Court of Pasay City to accommodate the public and members of the press. Also, he told the press that if you want
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to ask question, I am allowing you to do so and the questions will be reproduced as my own. Is the act of the fiscal in sensationalizing the case unethical? A: Yes. Fiscal Salva should be publicly reprehended and censured for the uncalled and wide publicity and sensationalism that he had given to and allowed in connection with his investigation, whatever be his motive, which is considered and found to be contempt of court (Cruz v Salva, G.R. No. L-12871, July 25, 1959) 4. PARTICIPATE IN THE IMPROVEMENT OF THE LEGAL SYSTEM CANON 4, CPR - A LAWYER SHALL PARTICIPATE IN THE DEVELOPMENT OF THE LEGAL SYSTEM BY INITIATING OR SUPPORTING EFFORTS IN LAW REFORM AND IN THE ADMINISTRATION OF JUSTICE (2008 BAR QUESTION).
Note: By reason of education and experience, lawyers are especially qualified to recognize deficiencies in the legal system and to initiate corrective measures therein. Thus they should participate in proposing and supporting legislation and programs to improve the system, without regard to the general interests or desires of clients or former clients. (Ethical Consideration 8-1, 1978, Model Code of Professional Responsibility, American Bar Association) opposing candidate is better qualified. (ABA Opinion 189 (1938); Funa, 2009)
5. PARTICIPATION IN LEGAL EDUCATION CANON 5, CPR - A LAWYER SHALL KEEP ABREAST OF LEGAL DEVELOPMENTS, PARTICIPATE IN CONTINUING LEGAL EDUCATION PROGRAMS, SUPPORT EFFORTS TO ACHIEVE HIGH STANDARDS IN LAW SCHOOLS AS WELL AS IN THE PRACTICAL TRAINING OF LAW STUDENTS AND ASSIST IN DISSEMINATING INFORMATION REGARDING THE LAW AND JURISPRUDENCE (2003,2006,2008 Bar Questions).
Note: This duty carries with it the obligation to be well informed of the existing laws, and to keep abreast with legal developments, recent enactment and jurisprudence. It is imperative that they be conversant with basic legal principles. Unless they faithfully comply with such duty, they may not be able to discharge competently and diligently their obligations as members of the Bar. Worse, they may become susceptible to committing mistakes. (Dulalai Jr. v. Cruz, A.C. No. 6854, Apr. 27, 2007, citing Santiago v. Rafanan, A.C. No. 6252 Oct. 5, 2004)
Q: What is the three-fold obligation of a lawyer? A: 1. 2. He owes it to himself to continue improving his knowledge of the laws He owes it to his profession to take an active interest in the maintenance of high standards of legal education He owes it to the lay public to make the law a part of their social consciousness.
E.g.: 1.
2.
Presenting position papers or resolutions for the introduction of pertinent bills in Congress; or Petitions with the SC for the amendment of the Rules of Court.
3.
Note: Every man owes some of his time to the up building of the profession to which he belongs. (Report of the IBP Committee) Note: Lawyers also have the duty to assist the Judicial and Bar Council (JBC) is appraising accurately the qualifications of candidates for judicial office. A lawyer may with propriety endorse a candidate and seek that endorsement from other lawyers. A lawyer should not use or attempt to use the power or prestige of the judicial office to secure such endorsement. On the other hand, the lawyer whose endorsement is sought should have the courage and moral stamina to refuse the request for endorsement if he believes the candidate lacks the essential qualifications for the office or believes the
CANON 6, CPR -THESE CANONS SHALL APPLY TO LAWYERS IN GOVERNMENT SERVICES IN THE DISCHARGE OF THEIR TASKS (1992,1993,2000,2001,2006 BAR QUESTIONS).
Note: Canons shall apply to lawyers in government service in the discharge of their tasks. Lawyers should be more sensitive in the performance of their professional obligations as their conduct is subject to constant scrutiny of the public.
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Rule 6.01, Canon 6, CPR The primary duty of a lawyer engaged in public prosecution is not to convict but to see to it that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action. (1992, 1993 Bar Questions) Q: What is the foremost duty of a lawyer? A: The foremost duty of a lawyer is not to his client but to the administration of justice. To this end, his clients success is wholly subordinate.
Note: His conduct ought to and must always be scrupulously observant of law and ethics, while a lawyer must advocate his clients cause in utmost earnestness and with the maximum skill he can marshal; he is not at liberty to resort to illegal means for his clients interest. It is the duty of an attorney to employ for the purpose of maintaining the causes confided in him such means as are consistent with truth and honor. (Valencia v. Cabanting, A.M. Nos. 1302, 1391, 1543; Apr. 26, 1991)
1.
2.
3.
4.
Engage in the Private practice of their profession unless authorized by the constitution or law, provided that such practice will not conflict or tend to conflict with their official functions; Own, control, manage or accept Employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law; Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office; Use or divulge confidential or classified information officially known to them by reason of their office and not available to the public.
Q: What is the difference between rule 6.02 and 6.01? A: Unlike rule 6.01, 6.02 is not limited to public prosecutors, or public lawyers engaged principally in criminal prosecution cases. The restriction applies particularly to lawyers in government service, who are allowed by law to engage in private law practice, and those who, though prohibited from engaging in the practice of law, have friends, former associates and relatives who are in the active practice of law. (CPR Annotated, PhilJA) prohibits lawyers from representing a private client even if the interests of the former government client and the new client are entirely parallel. Rule 6.03, Canon 6, CPR A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service. (1992, 1993, 2001 Bar Questions)
Note: The intervention must be substantial.
Q: From the viewpoint of legal ethics, why should it be mandatory that the public prosecutor be present at the trial of a criminal case despite the presence of a private prosecutor? A: The public prosecutor must be present at the trial of the criminal case despite the presence of a private prosecutor in order to see to it that the interest of the State is well-guarded and protected, should the private prosecutor be found lacking in competence in prosecuting the case. Moreover, the primary duty of a public prosecutor is not to convict but to see to it that justice is done (Rule 6.01, CPR). A private prosecutor would be naturally interested only in the conviction of the accused. (2001 Bar Question) Rule 6.02, Canon 6, CPR A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties. Q: What are the restrictions on lawyers who are also public officials and employees during their incumbency? A: They must not: PERU
Q: Atty. Madrigal worked in the Supreme Court, under the division which handles the case of Mr. Roxas. Before the promulgation of the decision of the case, Atty. Madrigal resigned and started to work in the law firm which handles the case of Mr. Roxas. Is Atty. Madrigal allowed to use the information he got to help in the case handled by the firm? A: No, such act is unethical and is violative of Rule 6.03 of the CPR.
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Note: Sec. 7(b) of R.A. 6713 prohibits former public official or employee for a period of 1 year after retirement or separation from office to practice his profession in connection with any other matter before the office he used to be with.
Q: What is the meaning of any matter and intervene? A: Any matter, according to the American Bar Association formal opinion, is any discrete isolatable act, as well as identifiable transaction or conduct involving a particular situation and specific party, and not merely an act of drafting, enforcing or interpreting government or agency proceeding, regulations or laws or briefing abstract principles of law. Intervene includes an act of a person who has the power to influence the subject proceedings. (PCGG v. Sandiganbayan, G.R. Nos. 151809-12, Apr. 12, 2005) Q: Former Solicitor General Estelito Mendoza filed a petition with the CFI praying for the assistance and supervision of the court in the GenBanks liquidation. Mendoza gave advice on the procedure to liquidate the GenBank. Subsequently, President Aquino established the PCGG to recover alleged ill-gotten wealth of former President Marcos, his families and cronies. The PCGG filed with the Sandiganbayan a complaint for reversion, reconveyance, restitution, accounting and damages against Tan, et al. and issued several writs of sequestration on properties they allegedly acquired. Tan, et al. were represented by former SolGen Mendoza, who has then resumed his private practice of law. The PCGG filed motions to disqualify Mendoza as counsel for Tan, et al. The motions alleged that Mendoza, as then SolGen and counsel to Central Bank, actively intervened in the liquidation of GenBank, which was subsequently acquired by Tan, et al. Is Rule 6.03 of the CPR applicable to Mendoza? A: No. The advice given by Mendoza on the procedure to liquidate the GenBank is not the matter contemplated by Rule 6.03 of the CPR. ABA Formal Opinion No. 342 is clear in stressing that the drafting, enforcing or interpreting government or agency procedures, regulations or aws, or briefing abstract principles of law are acts which do not fall within the scope of the term matter and cannot disqualify.
It is submitted that the court should apply Rule 6.03 in all its strictness for it correctly disfavors lawyers who switch sides. It is claimed that switching sides carries the danger that former government employee may compromise confidential official information in the process. However, this concern does not cast shadow in the case at bar. The act of Mendoza in informing the Central Bank on the procedure on how to liquidate the GenBank is a different matter from the subject matter of the civil case which is about the sequestration of the shares of Tan et. al. in Allied Bank. Consequently, the danger that confidential official information might be divulged is still nil, if not inexistent. To be sure, there are no inconsistent sides to be bothered about in this case. For there is no question that in lawyering for Tan et. al., Mendoza is indirectly defending the validity of the action of the Central Bank in liquidating GenBank and selling it later to Allied Bank. Their interests coincide instead of colliding. (PCGG v. Sandiganbayan, G.R. Nos. 151809-12, April 12, 2005) Q: Distinguish adverse-interest conflicts and congruent-interest representation conflicts? A: Adverse-interest conflicts Exist where the matter in which the former government lawyer represents a client in private practice is substantially related to the matter that the lawyer dealt with while employed by the government and the interests of the government and the interests of the current and former are adverse
Congruent-interest representation conflicts are unique to government lawyers and apply primarily to former government lawyers. (CPR Annotated, PhilJA)
Note: The restriction provided under the rule covers engagement or employment which means that he cannot accept any work or employment from anyone that will involve or relate to the matter in which he intervened as a public official, except on behalf of the body or authority which he served during his public employment. (CPR Annotated, PhilJA)
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B. THE LAWYER AND. THE LEGAL PROFESSION CANON 7, CPR - A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. 1. INTEGRATED BAR OF THE PHILIPPINES Q: What is Integrated Bar of the Philippines? A: It is an official national body composed of all persons whose names now appear or may hereafter be included in the Roll of Attorneys of the Supreme Court. (Sec. 1, Rule 139-A, RRC)
Note: IBP is a national organization of lawyers created on 16 January 1973 under Rule 139-A, Rules of Court, and constituted on 4 May 1973 into a body corporate by Presidential Decree No. 181. Note: Integrated bar is a State-organized Bar, to which every lawyer must belong as distinguished from bar associations organized by individual lawyers themselves, membership in which is voluntary. Note: The Philippines is divided into 9 Regions of the Integrated Bar. (Sec.3, Rule 139-A, RRC) Note: A Chapter of the Integrated Bar shall be organized in every province. (Sec. 4, Rule 139-A, RRC) Each Chapter shall have its own local government as provided for by uniform rules to be prescribed by the Board of Governors and approved by the Supreme Court. (Sec. 4, Rule 139-A, RRC) Note: The Integrated Bar shall have a House of Delegates of not more than one hundred twenty members who shall be apportioned among all the Chapters as nearly as may be according to the number of their respective members, but each Chapter shall have at least one Delegate. The term of the office of Delegate shall begin on the date of the opening of the annual convention of the House and shall end on the day immediately preceding the date of the opening of the next succeeding annual convention. No person may be a Delegate for more than two terms. (Sec. 5,Rule 139 A, RRC)
Q: Is the integration of the IBP constitutional? A: Yes, the practice of law is not a vested right but a privilege clothed with public interest. Hence, it is far and just that the exercise of that privilege be regulated to assure compliance with the lawyer's public responsibilities. Given existing Bar conditions, the most efficient means of doing so is by integrating the Bar through a rule of court that requires all lawyers to pay annual dues to the Integrated Bar. (In the Matter of the Integration of the Bar of the Philippines, 49 SCRA 22, Jan. 9, 1973) a. The Board of Governors
Q: What is Integration of the Bar? A: The Integration of the Philippine Bar means the official unification of the entire lawyer population, and this requires membership and financial support of every attorney as condition sine qua non to the practice of law and the retention of his name in the Roll of Attorneys of the Supreme Court (Pineda,1999).
Note: Integration of the bar is essentially a process by which every member of the bar is afforded an opportunity to do his share in carrying out the objectives of the bar as well as obliged to bear his portion of its responsibilities. (CPR Annotated, PhilJA)
Q: Who governs the IBP? A: The Integrated Bar shall be governed by a Board of Governors. (Sec. 6, Rule 139-A, RRC) Q: How many and what is the procedure in the selection of the Board of governors? A: Nine Governors shall be elected by the House of Delegates from the nine Regions on the representation basis of one Governor from each Region. Each Governor shall be chosen from a list of nominees submitted by the Delegates from the Region, provided that not more than one nominee shall come from any Chapter. The President and the Executive Vice President, if chosen by the Governors from outside of themselves as provided in section 7 of this Rule,
Q: What are the fundamental purposes of the IBP? A: 1. 2. 3. To elevate the standards of the legal profession; Improve the administration of justice; and Enable the Bar to discharge its public responsibility more effectively. (Sec. 2, Rule 139-A, RRC)
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shall ipso facto become members of the Board. (Sec. 6, Rule 139-A, RRC) Q: What is the term of the members of the Board? A: The members of the Board shall hold office for a term of one year from the date of their election and until their successors shall have been duly elected and qualified. No person may be a Governor for more than two terms. (Sec. 6, Rule 139-A, RRC) Q: When is the regular meeting of the Board? A: The Board shall meet regularly once every three months, on such date and at such time and place as it shall designate. A majority of all the members of the Board shall constitute a quorum to do business. Special meetings may be called by the president or by five members of the Board. (Sec. 6, Rule 139-A, RRC)
Note: Subject to the approval of the Supreme Court, the Board shall adopt By-Laws and promulgate Canons of Professional Responsibility for all members of the Integrated Bar. The By-Laws and the Canons may be amended by the Supreme Court motu proprio or upon the recommendation of the Board of Governors. The Board shall prescribe such other rules and regulations as may be necessary and proper to carry out the purposes of the Integrated Bar as well as the provisions of this Rule. (Sec. 6, Rule 139-A, RRC)
need not be members of the Integrated Bar. (Sec. 7, Rule 139-A, RRC) Q: What is the officers term of office? A: The President and the Executive Vice President shall hold office for a term of one year from the date of their election and until their successors shall have duly qualified. The Executive Vice President shall automatically become the President for the next succeeding full term. The Presidency shall rotate from year to year among all the nine Regions in such order of rotation as the Board of Governors shall prescribe. No persons shall be President or Executive Vice President of the Integrated Bar for more than one term. (Sec. 7, Rule 139-A, RRC) Q: What are the basic qualifications for one who wishes to be elected governor for a particular region? A: 1. 2. He is a member in good standing of the IBP He is included in the voters list of his chapter or he is not disqualified by the Integration Rule, by the By-Laws of the Integrated Bar, or by the By-Laws of the Chapter to which he belongs He does not belong to a chapter from which a regional governor has already been elected, unless the election is the start of a new season or cycle He is not in the government service. (In Re: Petition to disqualify Atty. De Vera, A.C. No. 6052, Dec. 11, 2003)
3.
4. Q: Who are the officers of the IBP? How are they selected? A: The Integrated Bar shall have a/an: 1. 2. President Executive Vice President who shall be chosen by the Governors immediately after the latters election either from among themselves or from other members of the Integrated Bar, by the vote of at least five Governors. Each of the regional members of the Board shall be ex officio Vice President for the Region which he represents. Secretary Treasurer Such other officers and employees as may be required by the Board of Governors, to be appointed by the President with the consent of the Board, and to hold office at the pleasure of the Board or for such term as it may fix. Said officers and employees
Q: Is a candidate required to be morally fit in order to be qualified to run as an officer? A: There is nothing in the by-laws which explicitly provides that one must be morally fit before he can run for IBP governorship. For one, this is so because the determination of moral fitness of a candidate lies in the individual judgment of the members of the House of Delegates. Indeed, based on each members standard of morality, he is free to nominate and elect any member, so long as the latter possesses the basic requirements under the law. For another, basically the disqualification of a candidate involving lack of moral fitness should emanate from his disbarment or suspension from the practice of law by the Court, or conviction by final judgment of an offense which involves moral turpitude. (Ibid.)
3. 4. 5.
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Q: In the event of vacancy, who performs the duties of the President? A: a. In the event the President is absent or unable to act, his duties shall be performed by the Executive Vice President In the event of the death, resignation, or removal of the President, the Executive Vice President shall serve as Acting President during the remainder of the term of the office thus vacated In the event of the death, resignation, removal or disability of both the President and the Executive Vice President, the Board of Governors shall elect an Acting President to hold office until the next succeeding election or during the period of disability. (Sec. 8, Rule 139-A, RRC) candidate for any elective office in the Integrated Bar or by any other member, directly or indirectly, in any form or manner, by himself or through another person: 1. 2. b. Distribution, except on election day, of election campaign materials; Distribution, on election day, of election campaign materials other than a statement of the bio data of the candidate on not more than one page of a legal size sheet of paper; or causing the distribution of such statement to be done by persons other than those authorized by the officer presiding at the elections; Campaigning for or against any candidate, while holding an elective, judicial, quasijudicial or prosecutory office in the Government or any political subdivision, agency or instrumentality thereof; Formation of tickets, single slates, or combinations of candidates as well as the advertising thereof; and For the purpose of inducing or influencing a member to withhold his vote, or to vote for or against a candidate:
c.
3.
4.
Note: The filling of vacancies in the House of Delegates, Board of Governors, and all other positions of Officers of the Integrated Bar shall be as provided in the By-Laws. Whenever the term of an office or position is for a fixed period, the person chosen to fill a vacancy therein shall serve only for the unexpired term. (Sec. 8, Rule 139-A, RRC)
5.
a. b.
Q: How is the mandate in Sec. 13 of Rule 139-A of the Rules of Court stating that the IBP is nonpolitically manifested? A: By strictly providing that every activity tending to impair this basic feature is strictly prohibited and shall be penalized accordingly. No lawyer holding an elective, judicial, quasi-judicial or prosecutory office in the Government or any political subdivision or instrumentality thereof shall be eligible for election or appointment to any position in the Integrated Bar or any Chapter thereof. A Delegate, Governor, Officer or employee of the Integrated Bar, or an officer or employee of any Chapter thereof shall be considered ipso facto resigned from his position as of the moment he files his certificate of candidacy for any elective public office or accepts appointment to any judicial, quasi judicial, or prosecutory office in the Government or any political subdivision or instrumentality thereof. (Sec. 13, Rule 139-A, RRC) Q: What are the prohibited acts and practices relative to the elections of IBP officers? A: The following acts and practices relative to elections are prohibited, whether committed by a
c.
Payment of the dues or other indebtedness of any member; Giving of food, drink, entertainment, transportation or any article of value, or any similar consideration to any person; or Making a promise or causing an expenditure to be made, offered or promise to any person. (Sec. 4, IBP By-Laws; In the Matter of the Inquiry into the 1989 Elections of the Integrated Bar of the Philippines, A.M. No. 491, October 6, 1989)
Q: In the election of national officers of the IBP, the Supreme Court received reports of electioneering and extravagance that characterized the campaign conducted by the 3 candidates (Paculdo, Nisce and Mrs. Drilon) for President of the IBP. It is alleged that they used government planes, give free accommodations to voters to expensive hotels and there has been intervention of public officials to influence the voting. Is there a violation of the IBP by-laws? Is there sufficient ground for the Supreme Court to suspend the oath taking of the officials? A: Yes. The candidates for the national positions in the IBP conducted their campaign preparatory to the election on June 3, 1989 in violation of
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Section 14 of the IBP by-laws and the Rules of Court, that the IBP shall be strictly non-political. Also the ethics of the legal profession imposed on all lawyers has been violated corollary to their obligation to obey and uphold the constitution and the laws, the duty to promote respect for law and legal processes and to abstain activities aimed at the defiance of the law or at lessening confidence in the legal system. (In Re: IBP Elections, B.M. 491, Oct. 6, 1989) Q: A presidential aspirant was the guest of honor at a testimonial dinner for the officers and new members of a provincial chapter of the IBP. In his speech, the presidential aspirant announced that the IBP would play a major role in his administration. The officers of the chapter, after the speech, declared their unqualified support for the presidentiables candidacy and enjoined all members to do likewise. Comment on this announcement of support of the IBP chapter. A: The announcement of support of the IBP chapter is not proper. The Integrated Bar of the Philippines is strictly non-political. A delegate, governor, officer or employee of the IBP or any chapter thereof shall be considered ipso facto resigned from his position as of the moment he files his certificate of candidacy for any elective public office (Sec. 4, Art. 1, By Laws of the Intergrated Bar of the Philippines). The IBP chapters announcement of support for a presidential aspirant is engaging in a partisan political activity. (1997 Bar Question) Q: May a delegate or governor or any national or local officer of the IBP receive any compensation, allowance or emolument from the funds of the Integrated Bar? A: No. Except as may be specifically authorized or allowed by the Supreme Court, no Delegate or Governor and no national or local Officer or committee member shall receive any compensation, allowance or emolument from the funds of the Integrated Bar for any service rendered therein or be entitled to reimbursement for any expense incurred in the discharge of his functions.(Sec. 14, Rule 139-A, RRC) b. Membership and Dues Membership
Note: Membership in the National IBP is integrated or compulsory (Santos-Ong, 2009; Pineda, 1999). A lawyer does not automatically become a member of the IBP chapter where he resides or works after becoming a full-fledged member of the Bar. He has the discretion to choose the IBP Chapter he wants to join. (Garcia v. De Vera, A.C. 6052, December 11,2003) Note: Unless he otherwise registers his preference for a particular Chapter, a lawyer shall be considered a member of the Chapter of the Province, city, political subdivision or area where his office or, in the absence thereof, his residence is located. In no case shall any lawyer be a member of more than one Chapter. (Sec. 4,Rule 139-A, RRC)
Q: Is the requirement of good moral character a continuing requirement? A: Yes. Well settled is the rule that good moral character is not only a condition precedent for admission to the legal profession, but it must also remain intact in order to maintain ones good standing in that exclusive and honored fraternity. (Tapucar v. Tapucar, A.C. No. 4148, July 30, 1998)
Note: The nature of the office of any attorney at law requires that he shall be a person of good moral character. This qualification is not only a condition precedent to the admission to the practice of law; its continued possession is also essential for remaining in the practice of law. (People vs. Tuanda, Adm. Case No. 3360, Jan. 30, 1990) Note: The requirement of good moral character has four general purposes, namely: 1. 2. 3. 4. To protect the public To protect the public image of lawyers To protect prospective clients To protect errant lawyers from themselves. Each purpose is as important as the other. (Garrido v. Attys. Garrido and Valencia, A.C. No. 6593, Feb. 4, 2010)
Note: There is no such thing as retirement in the IBP as understood in labor law. A lawyer, however, may voluntary terminate his bar membership. (In Re: Atty. Jose Principe, Bar Matter No. 543, September 20,1990)
Q: What is the procedure for voluntary termination of membership in the IBP? A: A member may terminate his membership by filing a written notice to that effect with the Secretary of the Integrated Bar, who shall immediately bring the matter to the attention of the Supreme Court. Forthwith he shall cease to be a member and his name shall be stricken by the Court from the Roll of Attorneys. (Sec.11, Rule 139-A, RRC)
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Note: Re-instatement may be made by the Court in accordance with rules and regulations prescribed by the Board of Governors and approved by the Court. (Sec.11, Rule 139-A, RRC)
Membership Dues
Note: Every member of the Integrated shall pay such annual dues as the Board of Governors shall determine with the approval of the Supreme Court. A fixed sum equivalent to ten percent (10%) of the collections from each Chapter shall be set aside as a Welfare Fund for disabled members of the Chapter and the compulsory heirs of deceased members thereof. (Sec. 9,Rule 139-A, RRC)
without power to compel him to become a member of the IBP, hence, Sec. 1 of Rule 139-A of the Rules of Court is unconstitutional for it impinges on his constitutional right of freedom to associate (and not to associate)? A: No. To compel a member of the Integrated Bar is not violative of his constitutional freedom to associate. Integration does not make a lawyer a member of any group of which he is not already a member. He became a member of the Bar when he passed the Bar Examinations. All that integration actually does is to provide an official national organization for the well-defined but unorganized and incohesive group of which every lawyer is already a member. Assuming that the questioned provision does in a sense compel a lawyer to be a member of the Integrated Bar, such compulsion is justified as an exercise of the police power of the State. (In the Matter of IBP Membership Dues Delinquency of Atty. Edillon, A.C. No. 1928,December 19, 1980) Q: Atty. Llamas, for a number of years, has not indicated the proper PTR and IBP OR Nos. and data in his pleadings. He only indicated IBP Rizal 259060 but he has been using this for at least 3 years already. Atty. Llamas averred that he is only engaged in a limited practice of law and under R.A. 7432, as a senior citizen, he is exempted from payment of income taxes and included in this exemption, is the payment of membership dues. Is Atty. Llamas correct? A: Rule 139-A requires that every member of the Integrated Bar shall pay annual dues and default thereof for six months shall warrant suspension of membership and if nonpayment covers a period of 1-year, default shall be a ground for removal of the delinquents name from the Roll of Attorneys. It does not matter whether or not Atty. Llamas is only engaged in limited practice of law. Moreover, the exemption invoked by Atty. Llamas does not include exemption from payment of membership or association dues. (Santos Jr. v. Atty. Llamas, A.C. No. 4749, Jan. 20, 2000)
Note: The exemption granted by R.A. 7432 to senior citizens from paying individual income tax does not exempt lawyers who are likewise senior citizens from paying IBP dues and privilege tax. (Ibid) As regards dues, they are not entitled to 20% discount. (Pineda, 1999)
Q: Who determines the amount of annual dues to be paid by members? A: Every member of the Integrated Bar shall pay such annual dues as the Board of Governors shall determine with the approval of the Supreme Court. (Sec. 9, Rule 139-A, RRC) Q: Is the provision requiring payment of a membership fee void? A: No. It is quite apparent that the fee is indeed imposed as a regulatory measure, designed to raise funds for carrying out the purposes and objectives of the integration. There is nothing in the Constitution that prohibits the court, under its constitutional power and duty to promulgate rules concerning the admission to the practice of law and the integration of the Philippine bar. (In the Matter of IBP Membership dues delinquency of Atty. Marcial Edillon, A.M. No. 1928, Aug. 3, 1978) Q: What is the effect of non-payment of IBP dues? A: Default in the payment of annual dues for six months shall warrant suspension of membership in the Integrated Bar, and default in such payment for one year shall be a ground for the removal of the name of the delinquent member from the Roll of Attorneys (Sec. 10, Rule 139-A, RRC) subject to the requirement of due process. (Funa, 2009) Q: The Integrated Bar of the Philippines adopted a resolution recommending to the court the removal of the name Marcial A. Edillon, a duly licensed practicing attorney, from its Roll of Attorneys for stubborn refusal to pay his membership dues to the IBP since its constitution, notwithstanding due notice. Is Edillon correct in his objection that the court is
Q: Atty. Arevalo sought exemption from payment of IBP dues for the alleged unpaid accountability for the years 1977-2005. He
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alleged that after being admitted to the Philippine Bar in 1961, he became part of the Philippine Civil Service then migrated to, and worked in, the USA in December 1986 until his retirement in the year 2003. He maintained that he cannot be assessed IBP dues for the years that he was working in the Philippine Civil Service since the Civil Service law prohibits the practice of ones profession while in government service, and neither can he be assessed for the years when he was working in the USA. Is Atty. Arevalo entitled to exemption from payment of his dues during the time that he was inactive in the practice of law? A: No. The Integration of the Philippine Bar means the official unification of the entire lawyer population. This requires membership and financial support of every attorney as condition sine qua non to the practice of law and the retention of his name in the Roll of Attorneys of the Supreme Court. Payment of dues is a necessary consequence of membership in the IBP, of which no one is exempt. This means that the compulsory nature of payment of dues subsists for as long as ones membership in the IBP remains regardless of the lack of practice of, or the type of practice, the member is engaged in. There is nothing in the law or rules which allow exemption from payment of membership dues. At most, as correctly observed by the IBP, he could have informed the Secretary of the Integrated Bar of his intention to stay abroad before he left. In such case, his membership in the IBP could have been terminated and his obligation to pay dues could have been discontinued. (Letter of Atty. Arevalo, Jr. Requesting Exemption from Payment of Dues, B.M. No. 1370, May 9, 2005) 2. UPHOLDING THE DIGNITY AND INTEGRITY OF THE PROFESSION Rule 7.01, Canon 7, CPR A lawyer shall be answerable for knowingly making a false statement or suppressing a material fact in connection with his application for admission to the bar. (1995, 1997, 2004, 2005 Bar Questions)
Note: The concealment of an attorney in his application to take the bar exams of the fact that he had been charged with or indicted for an alleged crime, is ground for revocation of his license to practice law.
Q: Is honest mistake a valid excuse? A: An honest mistake in making false statement may be a valid excuse but the burden of proof lies on the one who alleges it. On the other hand, to be liable for suppressing a fact or information in the application, the suppression must be: 1. 2. Deliberately or knowingly made; and The fact or information suppressed must be material. (CPR Annotated, PhilJA)
Note: In order to determine whether or not a factual declaration is material or not, reference should be made to the requirements in applying for admission to the bar. (CPR Annotated, PhilJA)
Q: What are the consequences of knowingly making a false statement or suppression of a material fact in the application for admission to the Bar? A: Consequences of knowingly making a false statement or suppression of a material fact in the application for admission to the Bar: 1. If the false statement or suppression of material fact is discovered before the candidate could take the bar examinations, he will be denied permission to take the examinations. If the false statement or suppression of material fact was discovered after the candidate had passed the examinations but before having been taken his oath, he will not be allowed to take his oath as a lawyer. If the discovery was made after the candidate had taken his oath as a lawyer, his name will be stricken from the Roll of Attorneys.
2.
3.
Q: What is the effect if what is concealed is a crime NOT involving moral turpitude? A: Concealment will be taken against him. It is the fact of concealment and not the commission of the crime itself that makes him morally unfit to become a lawyer. When he made concealment he perpetrated perjury. Rule 7.02, Canon 7, CPR A lawyer shall not support the application for admission to the bar of any person known by him to be unqualified in respect to character, education or other relevant attribute.
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Note: The rationale behind the rule goes beyond the personal responsibility to be upright and honest. It further extends to the lawyers responsibility to uphold the integrity and dignity of the profession, by not blindly issuing certifications in support of applications for admission to the bar of persons known to him or her to have questionable character, inadequate education or other relevant attributes not consistent with any or all of the requirements for admission. (CPR Annotated, PhilJA) Public policy requires that the practice of law be limited to those individuals found duly qualified in education and character. The permissive right conferred on the lawyer is an INDIVIDUAL AND LIMITED PRIVILEGE subject to withdrawal if he fails to maintain proper standards of moral and professional conduct. the sanctity of marriage and the marital vows protected by the Constitution and affirmed by our laws. (Vitug v. Roncal, A.C. No. 6313, Sept. 7, 2006) It is not important that the acts complained of were committed before a lawyer was admitted to the practice of law. Parenthetically, Sec. 5(5), Art. VIII of the 1987 Constitution recognizes the disciplinary authority of the Court over the members of the Bar to be merely incidental to the Court's exclusive power to admit applicants to the practice of law. Reinforcing the implementation of this constitutional authority is Section 27, Rule 138 of the Rules of Court which expressly states that a member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for, among others, any deceit, grossly immoral conduct, or violation of the oath that he is required to take before admission to the practice of law. (Garrido v. Attys. Garrido and Valencia, A.C. No. 6593, Feb. 4, 2010)
Rule 7.03, Canon 7, CPR- A lawyer shall not engage in a conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. (2004 Bar Question) Q: What constitutes fitness to practice law? A: It is not to be determined only by the specific qualifications for admission into the bar but encompasses practically all aspects of a lawyers public or private life that could actually or potentially tarnish the integrity and dignity of the legal profession. (CPR Annotated, PhilJA) Q: Atty. Perenia got married in 2005. Then he met another woman, Helen; they fell in love and started living together. Atty. Perenia would even bring her along social functions and introduce her as his second wife. Is such act unethical? A: Yes, it violates Rule 7.03 of CPR. The fact that he shamelessly flaunts his mistress constitutes act which embarrass and discredit the law profession since it is his duty and obligation to uphold the dignity and integrity of the profession. The actuation of Atty. Perenia is contrary to good morals.
Note: While it has been held in disbarment cases that the mere fact of sexual relations between two unmarried adults is not sufficient to warrant administrative sanction for such illicit behavior, it is not so with respect to betrayals of the marital vow of fidelity. Even if not all forms of extra-marital relations are punishable under penal law, sexual relations outside marriage is considered disgraceful and immoral as it manifests deliberate disregard of
Q: Atty. Kuripot was one of Town Banks valued clients. In recognition of his loyalty to the bank, he was issued a gold credit card with a credit limit of P250,000.00. After two months, Atty. Kuripot exceeded his credit limit, and refused to pay the monthly charges as they fell due. Aside from a collection suit, Town Bank also filed a disbarment case against Atty. Kuripot. In his comment on the disbarment case, Atty. Kuripot insisted that he did not violate the Code of Professional Responsibility, since his obligation to the bank was personal in nature and had no relation to his being a lawyer. Is Atty. Kuripot correct? Explain your answer. A: Atty. Kuripot is not correct. Section 7.03 of the Code of Professional Responsibility provides that a lawyer shall not engage in conduct that adversely affects his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. Q: Explain whether Atty. Kuripot should be held administratively liable for his refusal to settle his credit card bill. A: He may not be held administratively liable. The Supreme Court has held that it does not take original jurisdiction of complaints for collection of debts. The creditors course of action is civil, not administrative in nature and proper reliefs may be obtained from the regular courts (Litigio v. Dicon, A.M. No. MTJ-93-806, July 13, 1995). Although lawyers have been held administratively liable for obstinacy in evading payment of a debt (Constantino v. Saludares, A.C. No. 2029, Dec. 7, 1993; Lao v. Medel, A.C. No. 5916, July 1, 2003),
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there is no obstinacy shown in this case. (2005 Bar Question) a. Privileges and Duties of a Lawyer Q: What are the privileges of a lawyer? A: PSP-IS-12 1. To Practice law during good behavior before any judicial, quasi-judicial, or administrative agency; 2. First one to Sit in judgment on every case, to set the judicial machinery in motion; 3. Enjoys the Presumption of regularity in the discharge of his duty; 4. He is Immune, in the performance of his obligations to his client, from liability to third persons, insofar as he does not materially depart from his character as a quasi-judicial officer; 5. His Statements, if relevant, pertinent or material to the subject of judicial inquiry are absolutely privileged regardless of their defamatory tenor and of the presence of malice; 6. 1st grade civil service eligibility for any position in the classified service in the government the duties of which require knowledge of law; and 7. 2nd grade civil service eligibility for any other governmental position, which does not prescribe proficiency in law as a qualification. Q: What are the duties of attorneys under the Revised Rules of Court? A: ADA- RECORD 1. To maintain Allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines; Not to encourage either the commencement or the continuance of an action or proceeding, or Delay any mans cause, from any corrupt motive or interest; To counsel and maintain such Actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law; To observe and maintain the Respect due to the courts of justice and judicial officers; To Employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and Q: Gretels residence in Makati Village was foreclosed by Joli Bank. Armed with a writ of possession issued by the lower court, the sheriff and Joli Banks lawyers evicted Gretel and padlocked the house. A restraining order issued by the Court of Appeals which Gretel showed the sheriff was disregarded. Gretel requested Hansel, an attorney who lives in the same village, to assist her in explaining the restraining order, since Gretels counsel of record was out of town. The discussion on the restraining order was conducted in the sidewalk along Gretels house. The village security guards were attracted by the commotion brought about by the discussion, so they called the Makati Police and the CAPCOM who responded immediately. The CAPCOM colonel, who arrived at the scene with his troop, took it upon himself to open the house and declare Gretel as the rightful possessor. The colonel invited Gretel and Hansel to enter the 6. honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law; To maintain inviolate the Confidence and at every peril to himself, to preserve the secrets in connection with his client and to accept no compensation in connection with his clients business except from him or with his knowledge and approval; To abstain from all Offensive personality and to advance no fact prejudicial to the honor and reputation of a party or witness unless required by the justice of the cause with which he is charged; Never to Reject, for any consideration personal to himself, the cause of the defenseless or oppressed; and In the Defense of a person accused of a crime, by all fair and reasonable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits to the end that no person may be deprived of life, liberty, but by due process of law. (Sec. 20, Rule 138, RRC) (2006 Bar Question)
7.
8.
9.
3. COURTESY, FAIRNESS AND CANDOR TOWARDS PROFESSIONAL COLLEAGUES

CANON 8, CPR - A LAWYER SHALL CONDUCT HIMSELF WITH COURTESY, FAIRNESS AND CANDOR TOWARD HIS PROFESSIONAL COLLEAGUES, AND SHALL AVOID HARASSING TACTICS AGAINST OPPOSING COUNSEL.
2.
3.
4.
5.
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house. Five days later, Hansel was made a corespondent (together with Gretel) in a complaint for trespass to dwelling filed by the Joli Banks lawyers before the Makati Fiscals Office. Discuss the propriety of the act of Joli Banks lawyers, considering that all lawyers are mandated to conduct themselves with courtesy, fairness and candor toward their professional colleagues and to avoid harassing tactics against opposing counsel. A: Considering that there was a restraining order issued by the Court of Appeals, it was proper for Gretel to take steps to maintain possession of his residence with the assistance of Hansel as a lawyer. It was not proper for Joli Banks lawyer to file an action for trespass to dwelling against Gretel and lawyer Hansel. Canon 8 of the CPR provides that a lawyer shall conduct himself with fairness and candor towards his professional colleagues and shall avoid harassing tactics against opposing counsel. (1989 Bar Question) Rule 8.01, Canon 8,CPR A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper. Q: Cite some instances of disrespectful language. A: 1. Categorizes the SC decision as false, erroneous and illegal (Suo v. Cloribel, A.M. No. 01-1-15-RTC, July 10, 2003) Description of judges attitude as unjust, hostile, vindictive and dangerous (Cornejo v. Judge Tan, G.R. No. L-2217, Mar. 23, 1950) Stating that justice is blind and also deaf and dumb (In Re: Almacen, G.R. No. L27654, Feb. 18, 1970) Attributing to the SC acts of dismissing judges without rhyme and reason and disbarring lawyers without due process (Zaldivar v. Gonzales, G.R. Nos. 79690-707, Feb. 1, 1989) Calling an adverse counsel as bobo or using the word ay que bobo in reference to the manner of offering evidence. (Castillo v. Padilla Jr., A.M. No. 2339, Feb. 1984); and Any other analogous cases. A: Yes. The Code of Professional Responsibility provides in Canon 8 that a lawyer shall conduct himself with courtesy, fairness, and candor toward his professional colleagues, and shall avoid harassing tactics against opposing counsel. Rule 8.01 provides that a lawyer shall not in his professional dealings, use language which is abusive, offensive or otherwise improper while Rule 11.03 provides that a lawyer shall abstain from scandalous, offensive or menacing language before the courts. Thus, Tiongco is warned accordingly. (Tiongco Yared v. Ilarde, G.R. No. 114732, Aug. 1, 2000)
Note: Lack of want of intention is no excuse for the disrespectful language employed. Counsel cannot escape responsibility by claiming that his words did not mean what any reader must have understood them as meaning. (Rheem of the Philippines v. Ferrer, G.R. No. L-22979, January 27, 1967) demeanor toward each other. While lawyers owe entire devotion to the interests of their clients, their office does not permit violation of the laws or any manner of fraud or chicanery. (Reyes v. Chiong, Jr., A.C. No. 5148, July 2003) Any kind of language which attacks without foundation the integrity of the opposing counsel or the dignity of the court may be stricken off the record or may subject a lawyer to disciplinary action. A lawyer who uses intemperate, abusive, abrasive or threatening language portrays disrespect to the court, disgraces the Bar and invites the exercise by the court of its disciplinary poers. (In re: Gomez, 43 Phil. 376, 1922). The lawyers arguments, whether written or oral, should be gracious to both the court and opposing counsel and be of such words as may be properly addressed by one gentleman to another. (National Security Co. v. Jarvis, 278 U.S. 610)
Q: In the pleadings and motions filed by Tiongco, he described Atty. Deguma as a love crazed Apache, a horned spinster, man-hungry virago and female bull of an Amazon who would stop at nothing to injure defendant if only to please and attract her client. Tiongco claims that she, as a lawyer in the Public Attorneys Office, is using the PAO as a marriage bureau for her benefit. Is the language employed by Tiongco improper and unethical?
2.
3.
4.
5.
6.
Note: Any undue ill-feeling between clients should not influence counsels in their conduct and
A lawyers language should be forceful but dignified, emphatic but respectfulas befitting an advocate and in keeping with the dignity of the legal profession. (In re: Climaco, A.C. No. 134-J, January 21, 1974).
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Note: Although the Canon that the Rule implements pertains to a lawyers dealings with his fellow lawyers, the Rule is generally worded to apply to anyone in the wider context of a lawyers professional dealings, including his or her clients and witnesses. (CPR Annotated, PhilJA)
Is it ethical for Atty. Mendoza to advise Myrna to terminate the services of Atty. Khan and hire him instead for a reasonable attorneys fees? A: Such advice would be unethical. A lawyer shall conduct himself with courtesy, fairness and candor towards his professional colleagues (Canon 8, CPR). Specifically, he should not directly or indirectly encroach upon the professional employment of another lawyer (Rule 8.02, CPR). Q: What should Atty. Mendoza do about the information relayed to him by Myrna that Atty. Khan approached her husband with an indecent proposal? A: He can advice her to terminate the services of Atty. Khan and/or file an administrative case against Atty. Khan. It is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel (Rule 8.02, CPR). (2006 Bar Question) Q: You are the counsel of K in his action for specific performance against DEV, Inc., a subdivision developer which is represented by Atty. L. Your client believes that the president of DEV Inc., would be willing to consider an amicable settlement and your client urges you to discuss the matter with DEV Inc., without the presence of Atty. L whom he consider to be an impediment to an early compromise. Would it be alright for you to negotiate the terms of the compromise as so suggested above by your client? A: No. Rule 8.02, Canon 8 of the Code of Professional Responsibility provides that a lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer. Canon 9 of the Code of Professional Ethics is more particular. A lawyer should not in any way communicate upon the subject of the controversy with a party represented by counsel, much less should he undertake to negotiate or compromise the matter with him but should deal only with his counsel. In the case of Likong v. Lim, A.C. No. 3149, August 17, 1994, a lawyer was suspended for negotiating a compromise agreement directly with the adverse party without the presence and participation of her counsels. (1997 Bar Question) 4. NO ASSISTANCE IN UNAUTHORIZED PRACTICE OF LAW
Rule 8.02, Canon 8, CPR A lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer; however, it is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel. (1995, 1997, 2001, 2005, 2006 Bar Questions)
Note: A person without a retained lawyer is a legitimate prospective client for any lawyer whom he approaches for legal services. But, as soon as he had retained one and had not dismissed the retained counsel, efforts of on the part of another lawyer to take him as client constitutes an act of encroaching upon the employment of another lawyer. A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel much less should he undertake to negotiate or compromise the matter with him, but should deal with his counsel. Exceptions: 1. A lawyer may properly interview any witness or prospective witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party. Any person who seeks relief against an unfaithful or neglectful lawyer may approach another lawyer for proper advice and assistance. Any advice or assistance extended after proper verification is not encroaching upon the business of another lawyer for such act is justified under the circumstances.
2.
Q: Myrna, in a case for custody of children against her husband, sought advice from Atty. Mendoza whom she met at a party. She informed Atty. Mendoza that her lawyer, Atty. Khan, has been charging her exorbitant appearance fees when all he does is move for postponements which have unduly delayed the proceedings; and that recently, she learned that Atty. Khan approached her husband asking for a huge amount in exchange for the withdrawal of her Motion for Issuance of Hold Departure Order so that he and his children can leave for abroad.
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whom defined functions are reserved. To delegate the functions would violate the rationale behind reserving defined functions exclusively for those who are admitted to the bar. The rationale of law in reserving defined functions to those who are admitted to the bar is to protect the public, the court, the client and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the court. Although the authority of a lawyer to represent a client cannot be delegated to an unqualified person, it does not follow however that the retained lawyer is automatically authorized to make such delegation to a qualified person because a client-lawyer relationship is personal. (CPR Annotated, PhilJA) Q: Lorenzo is a lawyer but is suspended in the practice of law due to some unethical acts. He worked for a law firm owned by one of his friends. Since he has so many cases to handle, Atty. Berenguer assigned a case to Lorenzo, believing he can handle such easy case. Did Atty. Berenguer violate any rule? A: Yes, because he delegates handling of a case to a person suspended from the practice of law. Under Rule 9.01 of CPR A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the bar in good standing.
Note: A lawyer is prohibited from taking as partner or associates any person who is not authorized to practice law to appear in court or to sign pleadings. A lawyer, who is under suspension from practice of law is not a member of the Bar in good standing. A lawyer whose authority to practice has been withdrawn due to a change in citizenship or allegiance to the country cannot appear before the courts. (Guballa v. Caguioa, G.R. No. L-46537, July 29, 1977)
CANON 9, CPR -A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY, ASSIST IN THE UNAUTHORIZED PRACTICE OF LAW (1992, 1995, 1997, 2000, Bar Questions)
Note: Public policy requires that practice of law be limited only to those individuals found duly qualified in education and character. Purpose: To protect the public, the court, the client and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the court.
Q: Sanchez alleged that the complaint against him and the supporting affidavits were subscribed and sworn to before Tupas, the Clerk of Court, who is not a member of the IBP and therefore engaged in unauthorized practice of law. Is Tupas as Clerk of Court authorized to administer oath? A: The term "clerk of courts" in the Section 41 of the Administrative Code as amended is used as a general term. The intention of the law is to authorize all clerks of court regardless of whether they are clerks of the Metropolitan Trial Courts, Municipal Trial Court and Municipal Circuit Trial Courts, to administer oaths on matter involving official business. As Clerk of Court of MCTC, Tupas has the authority to administer oath of affidavits of parties and witnesses which are to be filed in court. (Sanchez v. Tupas, A.M. OCA IPI No. 031687-P, Mar. 1, 2004)
Note: A lawyer is prohibited from allowing an intermediary to intervene in the performance of his professional obligation. Note: The act of pretending or assuming to be an attorney or an officer of the court and acting as such without authority is punishable with contempt of court. (Rule 71, sec 3(e), RRC)
Rule 9.01, Canon 9, CPR A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the bar in good standing. Q: What is the reason for the rule? A: The qualifications to be a lawyer is personal and the bar is an exclusive group of professionals who possess the requisite classifications and for
Rule 9.02, Canon 9, CPR A lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law.
Note: The interest promoted by the prohibition is that the independence of the professional judgment of a lawyer, which the client is paying for, could be at risk if a non-lawyer has direct rights to share in the legal fees resulting from the exercise of such professional judgment. (CPR Annotated, PhilJA)
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Q: What are the exceptions to Rule 9.02? A: 1. Where there is a pre-existing agreement with a partner or associate that, upon the latters death, money shall be paid over a reasonable period of time to his estate to persons specified in the agreement;(Rule 9.02,second par., Canon 9,CPR) or
Note: This exception is in the nature of a bequest. It is still in substance, payment to the deceased lawyer. His estate and/or assignee could not claim entitlement to the money in their own right but only by representation. (CPR Annotated, PhilJA)
the school. She explained that a lot of students lose their identification cards and are required to secure an affidavit of loss before they can be issued a new one. She claimed that this would be very lucrative for you, as more than 30 students lose their identification cards every month. However, the secretary wants you to give her one-half of your earning there from. Will you agree to the arrangement? Explain. A: No, I will not agree. Rule 9.02 of the Code of Professional Responsibility provides that a lawyer shall not divide or stipulate to divide a fee for legal service with persons not licensed to practice law. The secretary is not licensed to practice law and is not entitled to a share of the fees for notarizing affidavits, which is a legal service. (2005 Bar Question) C. THE LAWYER AND THE COURTS. 1. CANDOR, FAIRNESS AND GOOD FAITH TOWARDS THE COURT CANON 10, CPR
2.
Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; (Rule 9.02 ,third par., Canon 9,CPR) or
Note: The first and second exceptions represent compensation for legal services of the deceased lawyers. The estate or the heir cannot be made a member of the partnership with the surviving partners. The legal fees in this case, no longer represent compensation for past services.
- A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT. (1994 Bar Question)
Rationale: The burden cast on the judiciary would be intolerable if it could not take at face value what is asserted by counsel.
3.
Where a lawyer or law firm includes a non-lawyer employees in a retirement plan, even if the plan is based in whole or in part, on a profit sharing agreement.(Rule 9.02, fourth par., Canon 9,CPR)
Note: This is not a division of legal fees but a pension representing deferred wages for the employees past services. This exception is an implicit recognition of the incontestable fact that lawyers need to, and in fact, depend on non-lawyers for the administrative support functions necessary to allow lawyers to discharge their legal functions more efficiently. (CPR Annotated, PhilJA)
Rationale: If attorneys fees were allowed to nonlawyers, it would leave the public in hopeless confusion as to whom to consult in case of necessity and also to leave the bar in a chaotic condition, aside from the fact that non-lawyers are not amenable to disciplinary measures.
Q: Atty. Florido demanded that the custody of their children be surrendered to him by showing his spouse Hueysuwan-Florido a photocopy of an alleged Resolution issued by the CA which supposedly granted his motion for temporary child custody. His spouse refused to surrender the custody. Hence, Atty. Florido filed a verified petition for the issuance of a writ of habeas corpus asserting his right to custody of the children on the basis of the alleged CAs resolution. Hueysuwan obtained a certification from the CA stating that no such resolution had been issued. Hence, complainant filed the instant complaint. May Atty. Florido be held administratively liable for his reliance on and attempt to enforce a spurious Resolution of the CA? A: Yes. Atty. Floridos actions erode the public perception of the legal profession. Candor and fairness are demanded of every lawyer. The burden cast on the judiciary would be intolerable if it could not take at face value what is asserted by counsel. The time that will have to be devoted
Q: You had just taken your oath as lawyer. The secretary to the president of a big university offered to get you as the official notary public of
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just to the task of verification of allegations submitted could easily be imagined. (HueysuwanFlorido v. Atty. Florido, A.C. No. 5624, Jan. 20, 2004) Rule 10.01, Canon 10, CPR A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he mislead, or allow the court to be misled by any artifice.
Note: A lawyer must be a discipline of truth. He should bear in mind that as an officer of the court his high vocation is to correctly inform the court upon the law and the facts of the case and to aid it in doing justice and arriving at correct conclusion. The courts on the other hand are entitled to expect only complete honesty from lawyers appearing and pleading before them. While a lawyer has the solemn duty to defend his clients cause, his conduct must never be at the expense of truth. (Young v. Batuegas, A.C. No. 5379, May 9, 2003) Note: A lawyer owes fidelity to the cause of his client but not at the expense of truth and the administration of justice. (Garcia v. Francisco, Adm. Case no. 3923, March 30,1993)
Q: Is the lawyers act in presenting false evidence in order that his client would win the case justifiable? A: No, because it is a clear violation of Canon 10 and Rule 10.01 of the CPR.
Note: Aside from violations of the CPR, the lawyer is also guilty of a crime under Art. 184, Revised Penal Code, which states, Any person who shall knowingly offer in evidence a false witness or testimony in any judicial or official proceeding, shall be punished as guilty of false testimony and shall suffer the respective penalties provided in this section.
Q: What are the requirements of candor? A: 1. A lawyer shall not suppress material and vital facts which bear on the merit or lack of merit of complaint or petition. A lawyer shall volunteer to the court any development of the case which has rendered the issue raised moot and academic. Disclosure to the court of any decision adverse to his position of which opposing counsel is apparently ignorant and which court should consider in deciding a case. He shall not represent himself as a lawyer for a client, appear in court and present pleadings in the latters behalf only to claim later that he was not authorized to do so.
2.
3.
Q: Dr. Maligaya, a doctor and retired colonel of the Air Force filed an action for damages against several military officers for whom Atty. Doronilla stood as a counsel. During the hearing of the case, Atty. Doronilla says that he and Dr. Maligaya had an agreement that if the opposing party withdraws the case against him, Dr. Maligaya will also withdraw all the cases. However, Dr. Maligaya swore that he never entered into any agreement to withdraw his lawsuits. Atty. Doronillo admitted that there was, in fact, no such agreement. He pointed out that his main concern was to settle the case amicably. Dr. Maligaya filed a case against Atty. Doronilla charging him of unethical conduct for having uttered falsehood in court. Is Atty. Doronilla guilty as charged? A: Yes. Atty. Doronilla violated Canon 10 and Rule 10.01 of the CPR. Not only that, he also violated the lawyers oath to do no falsehood, nor consent to the doing of any in court, of which Canon 10 and Rule 10.01 are but restatements. His act infringed on every lawyers duty to never seek to mislead the judge or any officer by an artifice or false statement of fact or law. (Maligaya v. Doronilla, A.C. No. 6198, Sept. 15, 2006)
4.
Q: What are the some cases of Falsehoods which merited discipline? A: 1. Lawyers falsely stating in a deed of sale that property is free from all liens and encumbrances when it is not so. (Sevilla v. Zoleta, A.C. No. 31, March 28, 1955) 2. Lawyers making it appear that a person, long dead, executed a deed of sale, in his favor. (Monterey v. Arayata, Per. Rec. Nos 3527, 3408, August 23, 1935) 3. Lawyer, encashing a check payable to a deceased cousin by signing the lattes name on the check. (In re: Samaniego, A.C. No. 74, November 20, 1959) 4. Lawyer falsifying a power of attorney and used it in collecting the money due to the principal and appropriating the money for his own benefit. (In re: Rusina, A.C. No. 270, May 29, 1959) 5. Lawyer alleging in one pleading that his clients were merely lessees of the property involved, and alleged in a later pleading that the same clients were the
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owners of the same property where there are false allegations in the pleadings. (Chavez v. Viola, GR No. 2152, 19 April 1991) Lawyer uttering falsehood in a Motion to Dismiss. (Martin v. Moreno, A.C. No. 1432, May 21, 1984) Lawyer denying having received the notice to file brief which is belied by the return card. (Ragasajo v. IAC, G.R. No. L-69129, August 31, 1987) Lawyer presenting falsified documents in court wich he knows to be false. (Berenguer v. Carranza, A.C. No. 716, January 30, 1969) Lawyer filing false charges or groundless suits. (Retuya v. Gorduiz, A.C. No. 1388, March 28, 1980) Rule 10.03, Canon 10, CPR - A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice.
Note: The rules of procedure are intended to facilitate the delivery of justice to those to whom it is due without it is due without unnecessary expense and waste of time for truly justice delayed is justice denied. Note: Filing multiple actions constitutes an abuse of the Courts processes. Those who filed multiple or repetitive actions subject themselves to disciplinary action for incompetence or willful violation of their duties as attorneys to act with all good fidelity to the courts, and to maintain only such actions that appear to be just and consistent with truth and honor. (Pablo R. Olivares etc. v. Atty. Arsenio Villalon Jr., A.C. No. 6323, April 13, 2007)
6.
7.
8.
9.
Rule 10.02, Canon 10, CPR A lawyer shall not knowingly misquote or misrepresent the contents of the paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved. Q. What is the rationale behind the rule? A: If not faithfully and exactly quoted, the decisions and rulings of the court may lose their proper and correct meaning, to the detriment of other courts, lawyers and the public who may thereby be misled.
Note: A mere TYPOGRAPHICAL ERROR in the citation of an authority is not contemptuous. Note: Labor Arbiter Almirante and Atty. Durano deliberately made the quote from the SCRA syllabus appear as the words of the Supreme Court. We admonish them for what is at least patent carelessness, if not an outright attempt to mislead the parties and the courts taking cognizance to insubordination. (Allied Banking Corporation v. CA, GR No. 144412, November 2003). Note: A lawyer must quote word for word, punctuation mark for punctuation mark.
Q: A lawyer habitually asks for the re-setting of the case of his client for no apparent reason, in order for the complainant to get frustrated and become uninterested in the prosecution of the case. Is that act considered unethical? A: Yes, under Rule 10.03 of the CPR.
Note: A lawyer should not abuse his right of recourse to the courts for the purpose of arguing a cause that had been repeatedly rebuffed. Neither should he use his knowledge of law as an instrument to harass a party nor to misuse judicial processes, as the same constitutes serious transgression of the Code of Professional Responsibility. For while he owes fidelity to the cause of his client, it should not be at the expense of truth and the administration of justice. (Garcia v. Francisco, A.C. No. 3923, Mar. 30, 1993)
Rule 10.04, Canon 10, CPR - A lawyer shall, when filing a pleading, furnish the opposing party with a copy thereof, together with all the documents annexed thereto. Unless a motion is ex parte, he should set it for hearing, with sufficient notice to the other party.
Note: This is a new provision. The purpose of this rule is to avoid surprise and delays in cases.
Q: A lawyer filed a pleading in court citing a law which was already repealed, since the new law is not favorable to his clients cause. Is he guilty of any unethical act? A: Yes, because he knowingly used the old law to mislead the court, such act is unethical based on Rule 10.02 of the CPR.
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2. RESPECT FOR COURTS AND JUDICIAL OFFICERS CANON 11, CPRA LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS. (1996 Bar Question)
Rationale: Disrespect toward the court would necessarily undermine the confidence of the people in the honesty and integrity of the members of the court, and consequently to lower or degrade the administration of justice by the court. All lawyers are expected to recognize the authority of the Supreme Court and obey its lawful processes and orders. Despite errors which one may impute on the orders of the Court, these must be respected, especially by the bar or the lawyers who are themselves officers of the courts. (Yap-paras v. Atty. Paras, A.C. No. 4947, June 7, 2007) Liberally imputing sinister and devious motives and questioning the impartiality, integrity and authority of the members of the Court result in the obstruction and perversion of the dispensation of justice. (Estrada v. Sandiganbayan, GR No. 15948688, November 2000) Note: Being an officer of the court, a lawyer occupies a quasi-judicial office and has responsibilities to the courts, to the public and to his clients. The greater burden imposed on the lawyer is his superior duty to the courts. Where duties to the courts conflict with his duties to his clients, his duties to court must yield to the former. (CPR Annotated, PhilJA)
that the decision in Estrada v. Arroyo being patently unlawful in view of the Code of Judicial Conduct, is not the act of the Supreme Court but is merely the wrong of those individual Justices who falsely spoke and acted in the name of the Supreme Court (Urbano v. Chavez, G.R. No. 87977, March 19, 1990). Are Atty. Paguias comments within the bounds of fair and wellfounded criticisms regarding decisions of the SC? A: No. Criticism or comment made in good faith on the correctness or wrongness, soundness or unsoundness, of a decision of the Court would be welcome for, if well-founded, and such reaction can enlighten the court and contribute to the correction of an error if committed. (In Re Sotto, 82 Phil. 595.) The ruling in Estrada v. Arroyo, being a final judgment, has long put to end any question pertaining to the legality of the ascension of Arroyo into the presidency. By reviving the issue on the validity of the assumption of Gloria Macapagal-Arroyo to the presidency, Attorney Paguia is vainly seeking to breathe life into the carcass of a long dead issue. Attorney Paguia has not limited his discussions to the merits of his client's case within the judicial forum; indeed, he has repeated his assault on the Court in both broadcast and print media. The Supreme Court does not claim infallibility; it will not denounce criticism made by anyone against the Court for, if well-founded, can truly have constructive effects in the task of the Court, but it will not countenance any wrongdoing nor allow the erosion of our peoples faith in the judicial system, let alone, by those who have been privileged by it to practice law in the Philippines. Canon 11 of the Code of Professional Responsibility mandates that the lawyer should observe and maintain the respect due to the courts and judicial officers and, indeed, should insist on similar conduct by others. In liberally imputing sinister and devious motives and questioning the impartiality, integrity, and authority of the members of the Court, Atty. Paguia has only succeeded in seeking to impede, obstruct and pervert the dispensation of justice. (Estrada v. Sandiganbayan, G.R. Nos. 159486-88, Nov. 25, 2003) Q: The Court En Banc issued a Resolution directing respondent Atty. De Vera to explain why he should not be cited for indirect contempt of court for uttering some allegedly contemptuous statements in relation to the case involving the constitutionality of the Plunder Law which was then pending. Atty. De vera
Q: Attorney Paguia, asserts that the inhibition of the members of the Supreme Court from hearing the petition is called for under the Code of Judicial Conduct prohibiting justices or judges from participating in any partisan political activity. According to him, the justices have violated the said rule by attending the 'EDSA 2 Rally' and by authorizing the assumption of VicePresident Macapagal Arroyo to the Presidency. The subsequent decision of the Court in Estrada v. Arroyo (G.R. Nos. 146710-15, Mar. 2, 2001 and G.R. Nos. 146710-15, April 3, 2001) is a patent mockery of justice and due process. He went on to state that the act of the public officer, if lawful, is the act of the public office. But the act of the public officer, if unlawful, is not the act of the public office. Consequently, the act of the justices, if lawful, is the act of the Supreme Court. But the act of the justices, if unlawful, is not the act of the Supreme Court. It is submitted
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admitted the report in the November 6, 2002 issue of the Philippine Daily Inquirer that he suggested that the Court must take steps to dispel once and for all these ugly rumors and reports that the Court would vote in favor of or against the validity of the Plunder Law to protect the credibility of the Court. Is the statement of Atty. De Vera disrespectful to the courts? A: Indeed, freedom of speech includes the right to know and discuss judicial proceedings, but such right does not cover statements aimed at undermining the Courts integrity and authority, and interfering with the administration of justice. Freedom of speech is not absolute, and must occasionally be balanced with the requirements of equally important public interests, such as the maintenance of the integrity of the courts and orderly functioning of the administration of justice. Thus, the making of contemptuous statements directed against the Court is not an exercise of free speech; rather, it is an abuse of such right. Unwarranted attacks on the dignity of the courts cannot be disguised as free speech, for the exercise of said right cannot be used to impair the independence and efficiency of courts or public respect therefore and confidence therein. (In Re: Published Alleged Threats by Atty. Leonard de Vera, A.M. No. 01-12-03-SC, July 29, 2002) Q: Can a lawyer criticize the courts? A: GR: Canon 11 A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others. XPN: The fact that a person is a lawyer does not deprive him of the right, as enjoyed by every citizen, to comment on and criticize the actuations of a judge.
Note: What a lawyer can ordinarily say against a concluded litigation and the manner the judge handed down the decision therein may not generally be said to a pending action. The court, in a pending litigation, must be shielded from embarrassment and influence in performing the important duty of deciding it. On the other hand, once litigation is concluded, the judge who decided on it is subject to the same criticism as any other public official because then his ruling becomes public property and is thrown open to public consumption. But it is the cardinal condition of all criticisms that it shall be bona fide, and shall not spill over the walls of decency and propriety. (Zaldivar v. Gonzales, G.R. Nos. 79690-707, Feb. 1, 1989)
Q: Members of the faculty of the UP College of Law published a statement on the allegations of plagiarism and misrepresentation relative to the Courts decision in Vinuya v. Executive Secretary. The authors directly accused the Court of perpetrating extraordinary injustice by dismissing the petition of the comfort women said case. The insult to the members of the Court was aggravated by imputations of deliberately delaying the resolution of the said case, its dismissal on the basis of polluted sources, the Courts alleged indifference to the cause of petitioners, as well as the supposed alarming lack of concern of the members of the Court for even the most basic values of decency and respect. A: While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic society, there is also a general consensus that healthy criticism only goes so far. Many types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially devastating attacks and unjust criticism can threaten the independence of the judiciary. The court must insist on being permitted to proceed to the disposition of its business in an orderly manner, free from outside interference obstructive of its functions and tending to embarrass the administration of justice. The Court could hardly perceive any reasonable purpose for the facultys less than objective comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Courts honesty, integrity and competence in addressing the motion for its reconsideration. As if the case on the comfort womens claims is not controversial enough, the UP Law faculty would fan the flames and invite resentment against a resolution that would not reverse the said decision. This runs contrary to their obligation as law professors and officers of the Court to be the first to uphold the dignity and authority of this Court, to which they owe fidelity according to the oath they have taken as attorneys, and not to promote distrust in the administration of justice. Their actions likewise constitute violations of Canons 10, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility. (Re: Letter of the UP Law Faculty entitled Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the
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Allegations of Plagiarism and Misrepresentation in the Supreme Court.( A.M. No. 10-10-4-SC, October 19, 2010) Rule 11.01, Canon 11, CPR A lawyer shall appear in court properly attired.
Note: As an officer of the court and in order to maintain the dignity and respectability of the legal profession, a lawyer who appears in court must be properly attired. Consequently, the court can hold a lawyer in contempt of court if he does not appear in proper attire. Any deviation from the commonly accepted norm of dressing in court (barong or tie, not both) is enough to warrant a citing for contempt. Note: The traditional attires for male lawyers in the Philippines are the long-sleeve Barong Tagalog or coat and tie. Female lawyers appear in semi-formal attires. Judges also appear in the same attire in addition to black robes.
conversations-both actual and/or by telephone". It belied their good intention and exceeded the bounds of propriety, hence not arguably protected; it is the surfacing of a feeling of contempt towards a litigant; it offends the court before which it is made. A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the courts. It must be remembered that the language vehicle does not run short of expressions which are emphatic but respectful, convincing but not derogatory, illuminating but not offensive. It has been said that a lawyer's language should be dignified in keeping with the dignity of the legal profession. It is the duty of Atty. Depasucat et.al. as members of the Bar to abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged. (Uy v. Depasucat, A.C. No. 5332, July 29, 2003)
Note: The language of a lawyer, both oral and written, must be respectful and restrained in keeping with the dignity of the legal profession and with his behavioral attitude toward his brethren in the profession. The use of abusive language by counsel against the opposing counsel constitutes at the same time disrespect to the dignity of the court justice. Moreover, the use of impassioned language in pleadings, more often than not, creates more heat than light. (Buenaseda v. Flavier, G.R. No. 106719, Sept. 21, 1993) The duty to observe and maintain respect is not a one-way duty from a lawyer to a judge. A judge should also be courteous to counsel, especially those who are young and inexperienced and to all those appearing or concerned in the administration of justice. R.A. No. 9211 or the Tobacco Regulation Act of 2003, in order to foster a healthful environment, absolutely prohibits smoking in specified public places and designates smoking and non-smoking areas in places where the absolute ban on smoking does not apply. Under this law, the Court is generally considered a place where smoking is restricted, rather than absolutely banned. Exceptions to this characterization are the Courts elevators and stairwells; the Courts medical and dental clinics; and the Courts cafeteria and other dining areas (including the Justices Lounge), together with their food preparation areas, where an absolute ban applies. In the areas where smoking restriction applies, the law requires that the Court designate smoking and non-smoking areas. Section 6, in connection with Section 1, of Office Order No. 06-2009 entitled Reiterating the Ban on Smoking as Provided for in Administrative Circular
Rule 11.02, Canon 11, CPR A lawyer shall punctually appear at court hearings.
Note: Punctuality is demanded by the respect which a lawyer owes to the court, the opposing counsel and to all the parties to the case. (Funa, 2009)
Rule 11.03, Canon 11, CPR A lawyer shall abstain from scandalous, offensive, or menacing language or behavior before the courts. Q: After the parties had filed their respective briefs with the Court of Appeals and before the latter's resolution submitting the case for decision was released, respondent lawyers, Atty. Depasucat, and others filed a pleading "Manifestation of Usurpation of Authority of the Hon. Court of Appeals from a Self-Confessed Briber of Judges", which stated that plaintiffappellant Uy had, in fact, confessed to bribing judges. Consequently, Uy filed a verified complaint against respondent lawyers for gross misconduct. Should the respondents be disciplined for having authored and filed the Manifestation of Usurpation of Authority of the Hon. Court of Appeals from a Self-Confessed Briber of Judges? A: Yes. Respondents went overboard by stating in the Manifestation that complainant "had in fact confessed to bribery and telling one of the judges, after the judges allegedly refused to give in to their demands, by using illegally taped
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No. 09-99 and Reiterated and Clarified in Memorandum Circular No. 01-2008A covers absolute smoking prohibition areas greater than those covered by R.A. 9211, which include all interior areas of the buildings of the courts and the areas immediately adjacent to these buildings. The Office Order still allows smoking within court premises (apparently referring to exterior areas), but such smoking has to be done in designated places. (Re: Smoking at the fire exit area at the back of the Public Information Office, A.M. No. 2009-23-SC, February 26, 2010) orderly administration of justice. Hence, in the assertion of the clients rights, lawyers even those gifted with superior intellect, are enjoined to rein up their tempers. (Zaldivar v. Gonzalez, G.R. Nos. 79690-707 October 7, 1988)
Rule 11.04, Canon 11, CPR A lawyer shall not attribute to a judge motives not supported by the record or have no materiality to the case. However, every citizen has the right to comment upon and criticize the actuations of public officers. This right is not dismissed by the fact that the criticism is aimed at a judicial authority, or that it is articulated by a lawyer. Such right is especially recognized where the criticism concerns a concluded litigation, because the courts actuations are thrown open to public consumption. Courts thus treat with forbearance and restraint a lawyer who vigorously assails their actuations for courageous and fearless advocates are the strands that weave durability into the tapestry of justice.
Note: As citizen and officer of the court, every lawyer is expected not only to exercise the right, but also to consider it his duty to expose the shortcomings and indiscretions of courts and judges. But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety. Post litigation utterances or publications made by lawyers, critical of the courts and their judicial actuations, whether amounting to a crime or not, which transcend the permissible bounds of fair comment and legitimate criticism and thereby tend to bring them into dispute or to subvert public confidence in their integrity and in the orderly administration of justice, constitute grave professional misconduct which may be visited with disbarment or other lesser appropriate disciplinary sanctions by the SC in the exercise of the prerogatives inherent in it as the duly constituted guardian of the morals and ethics of the legal fraternity. (In Re: Almacen, G.R. No. L-27654, Feb. 18, 1970)
Q: An administrative case and disbarment proceeding was filed against MDS, a Lady Senator for uttering in her privilege speech delivered in the Senate floor where she was quoted as saying that she wanted to spit on the face of Chief Justice and his cohorts in the Supreme Court, and calling the Court a Supreme Court of idiots. She alleged that it was considered as part of her Parliamentary immunity as such was done during the session. Is she correct? A: Yes, because her statements, being part of her privilege speech as a member of Congress, were covered by the constitutional provision on parliamentary immunity. Indeed, her privilege speech is not actionable criminally or in a disciplinary proceeding under the Rules of Court. However, as a member of the Bar, the Court wishes to express its deep concern about the language Senator Santiago used in her speech and its effect on the administration of justice. To the Court, the lady senator has undoubtedly crossed the limits of decency and good professional conduct. It is at once apparent that her statements in question were intemperate and highly improper in substance. MDS should have taken to heart in the first place the ensuing passage in In Re: Vicente Sotto that x x x [I]f the people lose their confidence in the honesty and integrity of this Court and believe that they cannot expect justice therefrom, they might be driven to take the law into their own hands, and disorder and perhaps chaos would be the result. No lawyer who has taken an oath to maintain the respect due to the courts should be allowed to erode the peoples faith in the judiciary. In this case, the lady senator clearly violated Canon 8, Rule 8.01 and Canon 11 of the Code of Professional Responsibility. (Pobre v. Senator Santiago, A.C. No. 7399, Aug. 25, 2009)
Note: The lawyers duty to render respectful subordination to the courts is essential to the
Q: Atty. Romeo Roxas was charged for contempt when he, in a letter addressed to Associate Justice Chico-Nazario, stated that Justice Nazario decided the cases in favor of Zuzuarregui, ordering Attys. Roxas and Pastor to pay the former P17,073,224.84 on considerations other than the pure merits of the case and called the SC a dispenser of injustice. He ended his letter by mocking her when he said sleep well if you
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still can and that her earthly life will be judged by the Supreme Dispenser of Justice where only the merits of your honors life will be relevant and material and where technicalities can shield no one from his or her wrongdoings. In the written explanation of Atty. Roxas, he extended apologies to Justice Nazario. He said he was merely exercising his rights to express a legitimate grievance or articulate fair criticisms of the courts ruling. Moreover, according to him, instead of resorting to public criticisms, he chose to ventilate his criticisms in a very discreet and private manner by writing a personal letter. Should Atty. Roxas be punished for the contents of his letter? A: Yes. Atty. Roxas letter contains defamatory statements that impaired public confidence in the integrity of the Judiciary. The making of contemptuous statements directed against the court is not an exercise of free speech; rather, it is an abuse of such right. A letter furnished to all the members of the SC, even if a copy was not disseminated to the media, does not enjoy the mantle of right to privacy. Letters addressed to the individual justices in connection with the performance of their judicial functions become part of the judicial record and are matter of concern for the entire court. Atty. Roxas is guilty of indirect contempt of court for an improper conduct tending, directly and indirectly, to impede, obstruct or degrade the administration of justice; and with his contemptuous and defamatory statements, Atty. Roxas likewise violated Canon 11 of the CPR particularly Rules 11.03 and 11.04. (Roxas v. Zuzuarregui, et. al., G.R. No. 152072, July 12, 2007) Q: When is public comment and criticism of a court decision permissible and when would it be improper? A: A lawyer, like every citizen, enjoys the right to comment on and criticize the decision of a court. As an officer of the court, a lawyer is expected not only to exercise that right but also to consider it his duty to expose the shortcomings and indiscretions of courts and judges. But such right is subject to the limitations that it shall be bona fide. It is proper to criticize the courts and judges, but it is improper to subject them to abuse and slander, degrade them or destroy public confidence in them. Moreover, a lawyer shall not attribute to a judge, motives not supported by the record or have no materiality in the case. (Rule 11.04, CPR) (1997 Bar Question)
Note: A lawyer should be reminded of his primary duty to assist the court in the administration of justice. The relations between counsel and judge should be based on mutual respect and on a deep appreciation by one of the duties of the other. It is upon their cordial relationship and mutual cooperation that the hope of our people for speedy and efficient justice rests. (Abiera v. Maceda, A.C. No. RTJ-91-660, June 30, 1994) If the court official or employee or a lawyer is to be disciplined, the evidence against him should be substantial, competent and derived from derived from direct knowledge, not on mere allegations, conjectures, suppositions or on the basis of hearsay. (Cervantes v. Atty. Sabio, A.C. No. 7828, August 11, 2008)
Rule 11.05, Canon 11, CPR - A lawyer shall submit grievances against a Judge to the proper authorities only. Q: Who are authorities? A: NATURE OF THE CASE If administrative in nature WHERE TO FILE It shall be filed with the Office of the Court Administrator of the Supreme Court It shall be filed with the Office of the Ombudsman It must be coursed through the House of Representative and the Senate in accordance with the rules on impeachment. (CPR Annotated, PhilJA) considered as the proper
If criminal and not purely administrative If it involves a Justice of the Supreme Court based on impeachable offenses
Note: An administrative complaint is not an

appropriate remedy where judicial recourse is still available, such as a motion for reconsideration, an appeal, or a petition for certiorari, unless the assailed order or decision is tainted with fraud, malice, or dishonesty. (Santiago III v. Justice Enriquez, Jr. A.M. No. CA-09-47-J, February 13, 2009)
Q: What are the rights and duties of a lawyer to criticize Courts?
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A: 1. The fact that a person is a lawyer does not deprive him of the rights, enjoyed by every citizen, to comment on and criticize the actuations of a judge subject to ethical standard. The court, in a pending litigation; must be shielded from embarrassment or influence in its all-important duty of deciding the case. Once litigation is concluded, the judge who decided it is subject to the same criticisms as any other public official because his ruling becomes public property and is thrown open to public consumption. It is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety (Zaldivar v. Gonzales, G.R. Nos. 79690-707, April 7, 1993). The duty of the bar to support the judge against unjust criticism and clamor does not, however, preclude a lawyer from filing administrative complaints against erring judges or from acting as counsel for clients who have legitimate grievances against them. But the lawyer should file charges against the judge before the proper authorities only and only after the proper circumspection and without the use of disrespectful language and offensive personalities so as not to unduly burden the court in the discharge of its function.
Note: A lawyer must exert every effort and consider it his duty to assist in the speedy and efficient administration of justice.
2.
3.
Q: Jardin engaged the services of Atty. Villar Jr. to represent him in a collection case. The case went its course, but later despite several extensions of time given by the trial court, Atty. Villar Jr. failed to file his formal offer of exhibits. The dismissal of the collection case prompted Jardin to file a verified affidavit-complaint for the disbarment of Atty. Villar Jr. with the Court, wherein he alleged that after the dismissal of the collection case, he terminated the services of Atty. Villar Jr. as his counsel; that Atty. Villar Jr. failed to return the originals of the documentary exhibits entrusted to him; and that Atty. Villar Jr. finally handed over the documents only as an aftermath of a heated argument he had with the Jardin's wife. Was Atty. Villar Jr. remiss in his duties as counsel when he failed to file his formal offer of exhibit? A: Yes. The record clearly shows that Atty. Villar Jr. has been languid in the performance of his duties as counsel for the complainant. He was given by the trial court several extensions of time. Therefore, Atty. Villar Jr. had three (3) months and nine (9) days within which to file the formal offer of exhibits. Atty. Villar Jr. did not bother to give an explanation even in mitigation or extenuation of his inaction. Manifestly, Atty. Villar Jr. has fallen short of the competence and diligence required of every member of the law. It is indeed dismaying to note Atty. Villar Jr.s patent violation of his duty as a lawyer. He committed a serious transgression when he failed to exert his utmost learning and ability and to give entire devotion to his client's cause. His client had relied on him to file the formal offer of exhibits among other things. But he failed him. Resulting as it did in the dismissal of the case, his failure constitutes inexcusable default. (Jardin v. Atty. Villar, Jr., A.C. No. 5474, Aug. 28, 2003) Q: Judgment was rendered against Eternal Gardens ordering it to reconvey the cemetery to the rightful owners. Despite the final decision of the SC, Eternal Gardens was able to prevent the execution for 17 years, rendering the judgment ineffectual. They filed several petitions and motions for reconsideration with the trial court and the CA despite the fact that it would never prosper as the trial courts decision had long become final before the said petitions were
4.
Note: Cardinal condition of criticism is that it shall be bona fide and shall not spillover the walls of decency and propriety.
3. ASSISTANCE IN THE SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE CANON 12, CPR - A LAWYER SHALL EXERT EFFORT AND CONSIDER IT HIS DUTY TO ASSIST IN THE SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE (1991,1994,1996,2003 Bar Questions)
Note: The filing of another action concerning the same subject matter, in violation of the doctrine of res judicata, runs contrary to this Canon. (Lim v. Montano, A.C. No. 5653, February 27, 2006).
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filed. Did the lawyers violate Canon 12 of the CPR? A: While lawyers owe their entire devotion to the interest of the client and zeal in the defense of their clients right, they are also officers of the court, bound to exert every effort to assist in the speedy and efficient administration of justice. They should not misuse the rules of procedure to defeat the ends of justice or unduly delay a case, impede the execution of a judgment or misuse court processes. The facts and the law should advise them that a case such as this should not be permitted to be filed to merely clutter the already congested judicial dockets. They do not advance the cause of law or their clients by commencing litigations that for sheer lack of merit do not deserve the attention of the courts. (Eternal Gardens Memorial Park Corporation v. CA, G.R. No. 123698, Aug. 5, 1998)
Note: All persons shall have the right to a speedy disposition of their cases before all judicial, quasijudicial or administrative bodies. (Sec. 16, Art. III, 1987 Constitution)
Rule 12.01, Canon 12, CPR A lawyer shall not appear for trial unless he has adequately prepared himself on the law and the facts of his case, the evidence he will adduce and the order of its preference. He should also be ready with the original documents for comparison with the copies.
Note: A newly hired counsel who appears in a case in the midstream is presumed and obliged to acquaint himself with all the antecedent processes and proceedings that have transpired in the record prior to his takeover. (Villasis v. CA, G.R. Nos. L36874-76, Sept. 30, 1974)
Rule 12.02, Canon 12, CPR A lawyer shall not file multiple actions arising from the same cause. (1991, 1997, 1998, 2002 Bar Questions) Q: What is forum-shopping? A: It is the improper practice of filing several actions or petitions in the same or different tribunals arising from the same cause and seeking substantially identical reliefs in the hope of winning in one of them. The omission to disclose pendency of appeal or prior dismissal of his case by a court of concurrent jurisdiction with intent of seeking a favorable opinion. The prohibition includes the filing of petitions for writs of certiorari, mandamus and prohibition when there are similar petitions already filed or pending. (CPR Annotated, PhilJA)
Note: The mere filing of several cases based on the same incident does not necessarily constitute forum shopping. The question is whether the several actions filed involve the same transactions, essential facts and circumstances. If they involve essentially different facts, circumstances and causes of action, there is no forum shopping. (Paredes v. Sandiganbayan, G.R. No. 108251, Jan. 31, 1996) The essence of forum shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment. (Foronda v. Atty. Guerrero, A.C. No. 5469, Aug. 10, 2004)
Q: Is a lawyer guilty of an unethical act when he employs means to delay the disposition of the case? A: Yes, because Canon 12 states that A lawyer shall exert every effort and consider it his duty to assist in the speedy and efficient administration of justice.
Note: The duty of a lawyer to assist in the speedy and efficient administration of justice includes the duty to refrain from talking to his witness during a break or recess in the trial while the witness is still under examination. The dilatory tactics of the defense counsel and the failure of both the judge and the fiscal to take effective counter measures to obviate the delaying acts constitute obstruction of justice. (People v. Jardin, G.R. Nos. L-33037-42, Aug. 17, 1983)
Q: What are acts which amount to obstruction of justice? A: Instructing a complaining witness not to appear at trial, asking a client to plead guilty to a crime he did not commit, advising a client to escape from prison, employing dilatory tactics, prosecuting clearly frivolous cases or appeals, filing multiple actions.
Q: How is forum shopping committed? A: 1. Going from one court to another in the hope of securing a favorable relief in one court, which another court has denied.
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2. Filing repetitious suits and proceedings in different courts concerning the same subject matter after one court has decided the suit with finality; or Filing a similar case in a judicial court after receiving an unfavorable judgment from an administrative tribunal. A: Yes. Although Top Rate as principal party executed the several certifications of non-forum shopping, Atty. Gana and Atty. Manlangit cannot deny responsibility therefore since Atty. Manlangit notarized the certifications and both of them definitely knew the relevant case status after having invariably acted as counsel of Top Rate before the trial court, the Court of Appeals and the Supreme Court. Attys. Gana and Manlangit of the Gana and Manlangit Law Office, counsel of record of Top Rate, are administratively liable for grotesque violations of the Code of Professional Responsibility. Forum shopping is committed by a party who institutes two or more suits in different courts, either simultaneously or successively, in order to ask the courts to rule on the same or related causes or to grant the same or substantially the same relief, on the supposition that one or the other court would make a favorable disposition or increase a party's chances of obtaining a favorable decision or action. It is an act of malpractice for it trifles with the courts, abuses their processes, degrades the administration of justice and adds to the already congested court dockets. What is critical is the vexation brought upon the courts and the litigants by a party who asks different courts to rule on the same or related causes and grant the same or substantially the same relief and in the process creates the possibility of conflicting decisions being rendered by different forums upon the same issues, regardless of whether the court in which one of the suits was brought has no jurisdiction over the action. (Top Rate Construction and General Services v. Paxton Devt. Corp., G.R. No. 151081, Sept. 11, 2003)
Note: The principle of non-forum shopping applies not only with respect to suits filed in courts but also in connection with litigations commenced in courts while an administrative proceeding is pending, in order to defeat administrative processes and in anticipation of an unfavorable court ruling.
3.
Q: Who signs the forum shopping certification? A: GR: The party himself as he has personal knowledge of the facts therein stated. XPN: Counsel, when clothed with a special power of attorney to do so. (The lawyer shall certify that he has personal knowledge of the facts therein stated and shall give justifiable reason or explanation why the party himself cannot sign the same).
Note: In case of a juridical person, its lawyer authorized through a board resolution must sign the certification. Should there be more than one plaintiff or petitioner, all of them must execute the certification and verification. Unless, it is a suit involving conjugal property, in such a case, the husband alone may execute the same.
Q: The trial court declared Paxton Development Corporation (PDC) the lawful owner of the subject lots. CA affirmed. Top Rate as the losing party sought to have the said resolution set aside and thereafter filed with the Supreme Court a motion for extension of time to file a petition for review from the adverse CA decision and resolution. The motion contained a "verification/certification" under oath as to nonforum shopping, without mentioning the pending manifestation and motion with the CA, which was notarized by Atty. Manlangit. Both Atty. Manlangit and Atty. Gana knew the relevant case status after having invariably acted as counsel of Top Rate before the trial court, the Court of Appeals and the Supreme Court. Top Rate then filed a series of motions with the SC, all of which failed to state that Top Rate still has a pending manifestation and motion with the CA. It was only when it withdrew its Petition for Review on Certiorari that Top Rate bared before the SC the existence of the said manifestation and motion pending with the CA. Should Top Rate and its counsel be found guilty of forum shopping?
Q: What are the possible consequences of forum shopping? A: 1. 2. 3. Summary dismissal of the multiple petition or complaint Penalty for direct contempt of court on the party and his lawyer Criminal action for a false certification of non forum shopping and indirect contempt
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4. Disciplinary proceedings for the lawyer concerned. (Sec. 5, Rule 7, 1997 Rules of Civil Procedure) (1998 Bar Question) Exploration, Inc. v. Macaraig, G.R. No. 78569, February 11, 1991) When counsel omits to disclose the pendency of an appeal, in filing a certiorari case (Collado v. Hernando, G.R. No.L43866, May 30, 1988). (2002 Bar Question)
5.
Q: J sustained serious physical injuries due to a motor vehicle collision between the car she was driving and a public utility bus, requiring her confinement for 30 days at the Makati Medical Center. After her release from the hospital, she filed a criminal complaint against the bus driver for serious physical injuries through reckless imprudence before the Makati Prosecutors Office. She also filed a civil complaint before the Paranaque Regional Trial Court against the bus operator and driver for compensatory, moral, exemplary and other damages. Aside from the two complaints, she additionally filed an administrative complaint against the bus operator with the Land Transportation Franchising and Regulatory Board for cancellation or suspension of the operators franchise. Would you say that she and her lawyer were guilty of forum-shopping? A: No. There is no forum-shopping in the simultaneous filing of a criminal case and a civil case in this instance. Article 33 of the Civil Code allows the filing by an injured party of a civil action for damages entirely separate and distinct from the criminal action in cases of defamation, fraud, and physical injuries. There is no forumshopping involved in filing an administrative complaint against the bus operator with the Land Transportation Franchising and Regulatory Board. The cancellation or suspension of the operators franchise is for a different cause of action. (1997 Bar Question) Q: Give five (5) instances of forum-shopping. A: 1. When, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another When he institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or the other court would make a favorable disposition(Benguet Electric Cooperative, Inc. v. NEA, G.R. No. 93924, January 23, 1991) Filing a second suit in a court without jurisdiction (New Pangasinan Review, Inc. v. NLRC,G.R. No. 85939, April 19, 1991) Filing an action in court while the same cause of action is still pending in an administrative proceeding (Earth Minerals
Note: The committee suggests full credit for any 3 of the above enumerated instances of forum-shopping.
Rule 12.03, Canon 12, CPR A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so. (2003 Bar Question)
Note: The court censures the practice of counsels who secures repeated extensions of time to file their pleadings and thereafter simply let the period lapse without submitting the pleading or even an explanation or manifestation of their failure to do so. (Achacoso v. CA, G.R. No. L-35867, June 28, 1973). Asking for extension of time must be in good faith. Otherwise, it is an obstruction of justice and the lawyer is subject to discipline. (CPR Annotated, PhilJA) The same rule applies more forcefully to motion for continuance. Postponement is not a matter of right but of sound judicial discretion. (Edrial v. QuilatQuilat, G.R. No. 133625, Sept. 6, 2000)
Rule 12.04, Canon 12, CPR A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse court processes.
2.
Note: It is understandable for a party to make full use of every conceivable legal defense the law allows it. However, of such attempts to evade liability to which a party should respond, it must ever be kept in mind that procedural rules are intended as an aid to justice, not as means for its frustration. Once a judgment becomes final and executory, the prevailing party should not be denied the fruits of his victory by some subterfuge devised by the losing party. Unjustified delay in the enforcement in the enforcement of a judgment sets at naught the role of the courts in disposing justiciable controversies with finality. (Aguilar v. Manila Banking Corporation, GR No. 157911, September 19, 2006)
3.
4.
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Lawyers should not resort to nor abet the resort of their clients, to a series of actions and petitions for the purpose of thwarting the execution of a judgment that has long become final and executory. (Cobb-Perez v. Lantin, No. L-22320, May 22, 1968)
5.
An adverse party, though he may be used as a witness, is not however a witness within the meaning of the rule permitting a lawyer to interview the witness of the opposing counsel.
Rule 12.05, Canon 12, CPR A lawyer shall refrain from talking to his witness during a break or recess in the trial, while the witness is still under examination. Q: What is the reason for the rule? A: To prevent the suspicion that he is coaching the witness what to say during the resumption of the examination.
Rationale: To uphold and maintain fair play with the other party and to prevent the examining lawyer from being tempted to coach his own witness to suit his purpose.
Note: A lawyer shall avoid testifying in behalf of his client. The function of a witness is to tell the facts as he recalls them in answer to questions while the function of an advocate is that of a partisan. It is difficult to distinguish between the zeal of an advocate and the fairness and impartiality of a disinterested witness. Although the law does not forbid an attorney to be a witness and at the same time an attorney in a cause, the courts prefer that counsel should not testify as a witness unless it is necessary and that they should withdraw from the active management of the case. (PNB v. Uy Teng Piao, G.R. No. L- 35252, Oct. 21, 1932) (2001, 2005 Bar Questions)
Q: Who is a witness? A: A human instrumentality through which the law and its ministers, the judges and lawyers, endeavor to ascertain the truth and to dispense justice to the following parties. Q: What are the guidelines in interviewing a witness? A: 1. A lawyer may interview a witness in advance of the trial to guide him in the management of the litigation; A lawyer may also interview a prospective witness for the opposing side in any civil and criminal action without the consent of opposing counsel or party; A lawyer must properly obtain statements from witnesses whose names were furnished by the opposing counsel or interview the employees of the opposing party even though they are under subpoena to appear as witnesses for the opposite side; If after trial resulting in defendants conviction, his counsel has been advised that a prosecution witness has committed perjury, it is not only proper but it is the lawyers duty to endeavor honorable means to obtain such witness reaction, even without advising the public prosecutor of his purpose and even though the case is pending appeal; and
Rule 12.06, Canon 12, CPR A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate another. Q: What are the sanctions on a lawyer who shall knowingly assist a witness to misrepresent himself or to impersonate another? A: Art. 184, Revised Penal Code provides: The lawyer who presented a witness knowing him to be a false witness is criminally liable for Offering False Testimony in Evidence.
Note: The lawyer who is guilty of the above is both criminally and administratively liable.
2.
Q: Is the witness who committed misrepresentation criminally liable?
the
3.
A: Yes. The witness who commits the misrepresentation is criminally liable for False Testimony either under Art. 181, 182 or 183, Revised Penal Code, depending upon the nature of the case.
Note: The lawyer who induces a witness to commit false testimony is equally guilty as the witness. Q: Who commits subordination of perjury? A: It is committed by a person who knowingly and willfully procures another to swear falsely and the witness subordinated does testify under circumstances rendering hm guilty of perjury. (U.S. v. Ballena, G.R. No. L-6294, February 10, 1911).
4.
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Rule 12.07, Canon 12, CPR A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him. Q: Nolito Boras was convicted of statutory rape. The victim, a minor, testified and the manner of examination was excessive. The lawyer of Boras was asking questions like, Did you have any opportunity at the time you were raped to hold the penis of Nolito Boras?, At the time, when you were raped by Nolito Boras, is his penis hard or soft?, and Did you see your uncle Cerilo after the accused stop pushing and pulling his penis to your vagina or while he was still in the process of pushing and pulling his penis to your vagina? Did the lawyer of Nolito Boras violate Rule 12.07? A: Yes. It must be stressed that in dealing with rape cases of children, especially those below 12 years of age, due care must be observed by the trial court in handling the victim. In fact, more often than not, the gruelling experience in the trial court in the course of direct examination and cross-examination is more traumatic than the fact of the rape itself. On such occasions, mishandling of victims lead to psychological imbalances which, if not properly treated by medical experts will lead to an abnormal behavioral response against the idea of sex itself and disturbed interaction with the opposite or same sex. By subjecting her into explaining whether she was forced or intimidated is excessive. It is because proof of force and intimidation is unnecessary in statutory rape. Considering that there is a medical report substantiating the allegations made by the victim, the manner of examination of the victim must be tempered. Especially in this case since the child is only six years old who remains uncorrupted. (People v. Boras, G.R. No. 127495, Dec. 22, 2000) Q: What is the obligation of a witness? A: A witness must answer questions although his answer may tend to establish a claim against him. Q: What are the rights of a witness? A: 1. To be protected from irrelevant, improper, or insulting questions and from harsh or insulting demeanor; 2. 3. 4. Not to be detained longer than the interest of justice requires; Not to be examined except only as to matters pertinent to the issue; Not to give any answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or Not to give an answer which will tend to degrade his reputation, unless it be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous and final conviction for an offense. (Sec. 3, Rule 132 of RRC)
5.
Note: It was highly inconsiderate for the prosecutor and the defense counsel to trade quips at the precise time the victim of rape was reviving her harrowing experience. Courts are looked up to by the people with high respect and are regarded as places were litigants are heard, rights and conflicts are settled and justice solemnly dispensed. Levity has no place in the courtroom during the examination of the victim of rape, and particularly at her expense. (People v. Nuguid, G.R. No. 148991, Jan. 21, 2004)
Rule 12.08, Canon 12, CPR A lawyer shall avoid testifying in behalf of his client, except: a. On formal matters, such as the mailing, authentication or custody of an instrument, and the like; or On substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel.
b.
Q: What is the reason for the rule? A: The function of a witness is to tell the facts as he recalls them in answer to questions. The function of an advocate is that of a partisan. It is difficult to distinguish between the zeal of an advocate and the fairness and impartiality of a disinterested witness. Q: What are the instances when a lawyer may not testify as a witness in a case which he is handling for a client? A: TARCC 1. When as an attorney, he is to Testify on the theory of the case
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2. When such would Adversely affect any lawful interest of the client with respect to which confidence has been reposed on him Having accepted a Retainer, he cannot be a witness against his client; He cannot serve Conflicting interests When he is to violate the Confidence of his client
It is improper for a litigant or counsel to see a judge in chambers and talk to him about a matter related to the case pending in the court of said judge. (Austria v. Masaquel, G.R. No. 22536, August 31, 1967)
3. 4. 5.
Q: What are the instances when a lawyer may testify as a witness in a case which he is handling for a client? A: FETAD 1. On Formal matters, such as the mailing, authentication or custody of instrument and the like; 2. Acting as an Expert on his fee; 3. On substantial matters in cases where his Testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel; 4. Acting as an Arbitrator; 5. Deposition. 4. RELIANCE ON MERITS OF CASE, NOT FROM IMPROPER INFLUENCE UPON THE COURTS CANON 13, CPR - A LAWYER SHALL RELY UPON THE MERITS OF HIS CAUSE AND REFRAIN FROM ANY IMPROPRIETY WHICH TENDS TO INFLUENCE, OR GIVES THE APPEARANCE OF INFLUENCING THE COURT. (1994, 1997,2000,2001,2003 Bar Questions)
Note: A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court.
Q: Atty. J requested Judge K to be a principal sponsor at the wedding of his son. Atty. J met Judge K a month before during the IBPsponsored reception to welcome Judge K into the community, and having learned that Judge K takes his breakfast at a coffee shop near his (Judge K's) boarding house, Atty. J made it a point to be at the coffee shop at about the time that Judge K takes his breakfast. Comment on Atty. J's acts. Do they violate the Code of Professional Responsibility? A: Yes, his actions violate the Code of Professional Responsibility. Canon 13 of the said Code provides that a lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court. Rule 13.01 of the same Code provides that a lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for, cultivating familiarity with judges. Atty. J obviously sought opportunity for cultivating familiarity with Judge K by being at the coffee shop where the latter takes his breakfast, and is extending extraordinary attention to the judge by inviting him to be a principal sponsor at the wedding of his son. (2000 Bar Question) Rule 13.02, Canon 13, CPR A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party. Q: When can there be prejudicial publicity? A: There must be an allegation and proof that the judges have been unduly influenced, not simply that they might be, by barrage of publicity. (CPR Annotated, PhilJA)
Note: The restriction does not prohibit issuances of statements by public officials charged with the duty of prosecuting or defending actions in court. Note: Public statements to arouse public opinion for or against a party are generally condemned.
Rule 13.01, Canon 13, CPR A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with judges.
Rationale: To protect the good name and reputation of the judge and the lawyer. Lawyers should not seek for opportunity to cultivate familiarity with judges. A lawyer who resorts to such practices of seeking familiarity with judges dishonors his profession and a judge who consents to them is unworthy of his high office.
Q: What is the test to determine whether public statements are contemptuous?
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A: The character of the act done and its direct tendency to prevent and obstruct the discharge of official duty. In a concluded litigation, a lawyer enjoys a wider latitude of comment on or criticize the decision of a judge of his actuation. Thus, it has been held that a newspaper publication tending to impede, obstruct, embarrass or influence the courts in administering justice in a pending case constitutes criminal contempt, but the rule is otherwise after the litigation is ended. (In re: Loazano, 54 Phil. 801, July 24, 1930) Q: Dumbledore, a noted professor of commercial law, wrote an article on the subject of letters of credit, which was published in the IBP Journal. Assume he devoted a significant portion of the article to a commentary on how the Supreme Court should decide a pending case involving the application of the law on letters of credit. May he be sanctioned by the Supreme Court? Explain. A: Professor Dumbledore may be sanctioned by the Supreme Court. Rule 13.02 of the CPR provides that a lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party. The Court in a pending litigation must be shielded from embarrassment or influence in its duty of deciding the case. Q: Assume Dumbledore did not include any commentary on the case. Assume further after the Supreme Court decision on the case had attained finality, he wrote another IBP Journal article, dissecting the decision and explaining why the Supreme Court erred in all its conclusions. May he be sanctioned by the Supreme Court? Explain. A: He may not be sanctioned by the Supreme Court. Once a litigation is concluded, the judge who decided it is subject to the same criticism as any other public official because his decision becomes public property and is thrown open to public consumption. The lawyer enjoys a wide latitude in commenting or criticizing the judges decision, provided that such comment or criticism shall be bona fide and not spill over the bounds of decency and propriety. (2008 Bar Question) Rule 13.03, Canon 13, CPR A lawyer shall not brook or invite interference by another branch or agency of the government in the normal course of judicial proceedings.
Note: As it will be contrary to the principle of separation of powers. All lawyers must uphold, respect and support the independence of the judiciary. This independence from interference is made to apply against all branches and agencies of the government. (Funa. 2009) The Supreme Court accordingly administered a reprimand to Bumanlag for gross ignorance of law and of the Constitution in having asked the President to set aside by decree the Courts decision which suspended him for two years from the practice of law. (De Bumanlag v. Bumanlag, A.M. No. 188, Nov. 29, 1976)
D. THE LAWYER AND THE CLIENT Attorney-Client Relationship (1995,1997,1999,2001,2002 Bar Questions) Q: What is the nature of attorney-client relationship? A: 1. Strictly personal Prohibits the delegation of work without the clients consent. Highly confidential a. Communication made in the course of lawyers professional employment; and Communication intended to be confidential.
2.
b.
3.
Fiduciary a. Hold in trust all moneys and properties of his client that may come into his possession; When a lawyer enforces a charging lien against his client, the relationship is terminated; and An attorney cannot represent adverse interest unless the parties consent to the representation after full disclosure of facts.
b.
c.
Q: Is a contract necessary in order to have a professional relationship between a lawyer and a client? A: No, the absence of a written contract will not preclude a finding that there is a professional relationship. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied.
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It is sufficient, to establish the professional relation, that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession. An acceptance of the relation is implied on the part of the attorney from his acting on behalf of his client in pursuance of a request from the latter.
Note: If a person, in respect to his business affairs or any troubles of any kind, consults with his attorney in his professional capacity with the view to obtaining professional advice or assistance and the attorney voluntarily permits or acquiesce in such consultation, as when he listens to his clients preliminary statement of his case or gives advice thereon, then the professional employment is regarded as established just as effective as when he draws his clients pleading or advocates his clients cause in court. (Dee v. CA, G.R. No. 77439, Aug. 24, 1989)
Q: What are the rules protecting attorney-client relationship? A: 1. 2. Best efforts must be exerted by the attorney to protect his clients interest; The attorney must promptly account for any fund or property entrusted by or received for his client; An attorney cannot purchase his clients property or interest in litigation; The privacy of communications shall at all times upheld; An attorney cannot represent a party whose interest is adverse to that of his client even after the termination of the relation.
3. 4. 5.
Q: How is a lawyer-client relationship formed? A: 1. Oral When the counsel is employed without a written agreement, but the conditions and amount of attorneys fees are agreed upon. Express when the terms and conditions including the amount of fees are explicitly stated in a written document, which may be a private or public document. Written contract of attorneys fees is the law between the lawyer and the client. Implied When there is no agreement, whether oral or written, but the client allowed the lawyer to render legal services not intended to be gratuitous without objection and client is benefited by reason thereof.
Q: What are the three principal types of professional activity that a licensed attorney at law generally engages in, in the practice of his profession? A: LAP 1. Legal advice and instructions to clients to inform them of their rights and obligations; 2. Appearance for clients before public tribunals which possess power and authority to determine rights of life, liberty, and property according to law, in order to assist in proper interpretation and enforcement of law; and 3. Preparation for clients of documents requiring knowledge of legal principles not possessed by ordinary layman. (CPR Annotated, PhilJA) Q: Uy engaged the services of Atty. Gonzales to prepare and file a petition for the issuance of a new certificate of title. Uy confided with him the circumstances surrounding the lost title and discussing the fees and costs. When the petition was about to be filed, Atty. Gonzales went to Uys office and demanded a certain amount from him other than what they had previously agreed upon. Uy found out later that instead of filing the petition for the issuance of a new certificate of title, Atty. Gonzales filed a lettercomplaint against him with the Office of the Provincial Prosecutor for falsification of public documents. The letter-complaint contained facts and circumstances pertaining to the transfer certificate of title that was the subject matter of the petition which Atty. Gonzales was supposed to have filed. Should Atty. Gonzales be suspended for violating the lawyer-client relationship when he filed a complaint for
2.
3.
Note: While a written agreement for professional services is the best evidence to show the relation, formality is not an essential element of the employment of an attorney. The absence of a written contract will not preclude a finding that there is a professional relationship.
Q: What are the advantages of a written contract between the Lawyer and the Client? A: 1. 2. It is conclusive as to the amount of compensation. In case of unjustified dismissal of an attorney, he shall be entitled to recover from the client full compensation stipulated in the contract (RA 636).
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falsification of public documents against his client using facts connected with the latters petition? A: No. As a rule, an attorney-client relationship is said to exist when a lawyer voluntarily permits or acquiesces with the consultation of a person, who in respect to a business or trouble of any kind, consults a lawyer with a view of obtaining professional advice or assistance. It is not essential that the client should have employed the attorney on any previous occasion or that any retainer should have been paid, promised or charged for, neither is it material that the attorney consulted did not afterward undertake the case about which the consultation was had, for as long as the advice and assistance of the attorney is sought and received, in matters pertinent to his profession. Evidently, the facts alleged in the complaint for estafa through falsification of public documents filed by Atty. Gonzales against Uy were obtained by Atty. Gonzales due to his personal dealings with Uy. Whatever facts alleged by Atty. Gonzales against Uy were not obtained by Atty. Gonzales in his professional capacity but as a redemptioner of a property originally owned by his deceased son and therefore, when Atty. Gonzales filed the complaint for estafa against Uy, which necessarily involved alleging facts that would constitute estafa, Atty. Gonzales was not, in any way, violating Canon 21. Clearly, there was no attorney-client relationship between Atty. Gonzales and Uy. The preparation and the proposed filing of the petition was only incidental to their personal transaction. (Uy v. Atty. Gonzales, A.C. No. 5280, Mar. 30, 2004) 1. AVAILABILITY OF SERVICE WITHOUT DISCRIMINATION CANON 14, CPR - A LAWYER SHALL NOT REFUSE HIS SERVICES TO THE NEEDY. (1990,1992,2006 Bar Questions)
Rationale: The poor and indigent should not be further disadvantaged by lack of access to the Philippine legal system.
become his client. He has the right to decline employment. XPN: 1. A lawyer shall not refuse his services to the needy (Canon 14); 2. He shall not decline to represent a person solely on account of the latters race, sex, creed or status of life or because of his own opinion regarding the guilt of said person (Rule 14.01); (1990, 1993, 2000, 2002, 2006 Bar Questions) 3. He shall not decline, except for serious and efficient cause like a. If he is not in a position to carry out effectively or competently; b. If he labors under a conflict of interest between him and the prospective client (Rule 14.03). Q: What is the rationale for the establishment and operation of legal aid offices in all chapters of the IBP? A: Legal aid is not a matter of charity. It is a means for the correction of social imbalances that may and often do lead to injustice, for which reason it is a public responsibility of the Bar. The spirit of public service should, therefore, underlie all legal aid offices. The same should be so administered as to give maximum possible assistance to indigent and deserving members of the community in all cases, matters and situations in which legal aid may be necessary to forestall an injustice. (Public Service, Sec. 1, Art. 1, IBP Guidelines on Legal Aid) Q: Are there instances where a lawyer has the duty to decline employment? A: A lawyer should decline no matter how attractive the fee offered may be if its acceptance will involve: RACCAA 1. 2. A violation of any of the Rules of the legal profession; Advocacy in any manner in which he had intervened while in the government service; Nullification of a Contract which he prepared; Employment with a Collection agency which solicits business to collect claims; Employment, the nature of which might easily be used as a means of Advertising his professional services of his skill; or
3. 4. 5.
Q: Does a lawyer have a right to decline employment? A: GR: A lawyer is not obliged to act as legal counsel for any person who may wish to
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6. Any matter in which he knows or has reason to believe that he or his partner will be an essential witness for the prospective client. (1993 Bar Question)
Q: What are the ethical considerations in taking a bad case? A: 1. Criminal case A lawyer may accept a losing criminal case because every accused is presumed innocent until proven guilty and is entitled to counsel. Civil case - The rules and ethics of the profession enjoin a lawyer from taking a bad case.
Rule 14.01, Canon 14, CPR - A lawyer shall not decline to represent a person solely on account of the latters race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person.
Rule 14.01 is applicable only in criminal cases. In criminal cases, a lawyer cannot decline to represent an accused or respondent because of his opinion that the said person is guilty of the charge or charges filed against him. In representing the accused or respondent, the lawyer must only use means which are fair and honorable. (Sec. 20[I], Rule 138, RRC) Rule 14.01 is not applicable in civil cases because it is the duty of an attorney to counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law. (Sec. 20[c], Rule 138, RRC)
2.
Q: What are the reasons why a lawyer may not accept a losing civil case? A: 1. The attorneys signature in every pleading constitutes a certificate by him that there is good cause to support it and that it is not interposed for delay, and willful violation of such rule shall subject him to disciplinary action; It is the attorneys duty to counsel or maintain such actions or proceedings only as appears to him to be just and only such defenses as he believes to be honestly debatable under the law; A lawyer is not to encourage either the commencement or the continuance of an action or proceeding, or delay any mans cause, for any corrupt motive or interest; and A lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or injure the opposite party or to work oppression or wrong.
2.
Q: Atty. DDs services were engaged by Mr. BB as defense counsel in a lawsuit. In the course of the proceedings, Atty. DD discovered that Mr. BB was an agnostic and a homosexual. By reason thereof, Atty. DD filed a motion to withdraw as counsel without Mr. BBs express consent. Is Atty. DDs motion legally tenable? Reason briefly. A: No. Atty. DDs motion is not legally tenable. He has no valid cause to terminate his services. His client, Mr. BB, being an agnostic and homosexual, should not be deprived of his counsels representation solely for that reason. A lawyer shall not decline to represent a person solely on account of the latters race, sex, creed or status of life or because of his own opinion regarding the guilt of said person. (Canon 14, Rule 14.01, CPR) (2004 Bar Question) b. Services as Counsel de Officio Rule 14.02, Canon 14, CPR A lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de oficio or as amicus curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid. (1991, 1993, 1994, 1996, 1998, 2001, 2002, 2004, 2006 Bar Question) Q: What is the protection given by law to poor litigants who cannot afford the services of a lawyer?
3.
4.
Q: Is there an instance when a lawyer may accept a losing civil case? A: Yes, provided that, in so doing, he must not engage in dilatory tactics and must advise his client about the prospects and advantage of settling the case through a compromise. (1996, 2001, 2002, 2005 Bar Question) a. Services Regardless of Persons Status
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A: A court may assign an attorney to render professional aid free of charge to any party in case, if upon investigation it appears that the party is destitute and unable to employ an attorney, and that the services of counsel are necessary to secure the ends of justice and to protect the rights of the party. It shall be the duty of the attorney so assigned to render the required service, unless he is excused therefrom by the court for sufficient cause shown. (Sec. 31, Rule 138, RRC) Q: Who may be appointed as counsel de oficio? A: 1. 2. Members of the bar in good standing; Any person, resident of the province and of good repute for probity and ability, in localities without lawyers. A: Yes. The right to counsel must be more than just the presence of a lawyer in the courtroom or the mere propounding of standard questions and objections. The right to counsel means that the accused is amply accorded legal assistance extended by a counsel who commits himself to the cause for the defense and acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case, and his knowing the fundamental procedures, essential laws and existing jurisprudence. The right of an accused to counsel finds substance in the performance by the lawyer of his sworn duty of fidelity to his client. Tersely put, it means an efficient and truly decisive legal assistance and not a simple perfunctory representation. It is never enough that accused be simply informed of his right to counsel; he should also be asked whether he wants to avail himself of one and should be told that he can hire a counsel of his own choice if he so desires or that one can be provided to him at his request. A counsel de oficio is expected to do his utmost. A mere pro-forma appointment of de oficio counsel who fails to genuinely protect the interests of the accused merits disapprobation. The exacting demands expected of a lawyer should be no less than stringent when one is a counsel de officio. He must take the case not as a burden but as an opportunity to assist in the proper dispensation of justice. No lawyer is to be excused from this responsibility except only for the most compelling and cogent reasons. Canon 18 of the Code of Professional Responsibility requires every lawyer to serve his client with utmost dedication, competence and diligence. He must not neglect a legal matter entrusted to him, and his negligence in this regard renders him administratively liable. Obviously, in the instant case, the aforenamed defense lawyers did not protect, much less uphold, the fundamental rights of the accused. Instead, they haphazardly performed their function as counsel de oficio to the detriment and prejudice of the accused Sevilleno, however guilty he might have been found to be after trial. (People v. Bermas, G.R. No. 120420. April 21, 1999)
Q: What are considered in appointing a counsel de oficio? A: 1. 2. 3. Gravity of offense; Difficulty of questions that may arise; and Experience and ability of appointee.
Q: A criminal complaint was filed against Bermas for the crime of rape. The Second Assistant Prosecutor issued a certification that the accused has waived his right to preliminary investigation. On the day of the scheduled arraignment, the accused was brought before the trial court without counsel. The court assigned a PAO attorney to be the counsel de officio who, during trial also made a request that she be relieved from the case. Another counsel was thereafter assigned as the new counsel de officio. When said new counsel for the accused failed to appear before the court for their presentation of evidence, the Court appointed another counsel de officio but, again, said counsel asked to be relieved from the case. The newly appointed counsel also failed to appear before the court. Despite the said events, the lower court convicted the accused of death penalty for the violation of the crime of rape. The defense counsel claimed that the accused was deprived of due process, was denied his Constitutional right to effective and vigilant counsel and his Constitutional right to be tried by an impartial judge. Is there a violation of due process and was denied of his Constitutional right to effective and vigilant counsel?
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c. Valid Grounds for Refusal Rule 14.03, Canon 14, CPR A lawyer may not refuse to accept representation of an indigent client unless: a. b. He is in no position to carry out the work effectively or competently; He labors under a conflict of interest between him and the prospective client or between a present client and a prospective client. Q: If Atty. Bonanza is requested to act as counsel for the accused, could he or should he refuse by saying that in the province, he wants to do nothing except ride horses and castrate bulls? Explain. A: The attorney cannot refuse to be appointed as counsel de oficio merely on the reason that he is a semi-retired practicing lawyer. Precisely one of the reasons for the integration of the bar in the Philippines is to compel all persons who have been admitted to the practice of law in the Philippines to perform their duties to assist the courts in the administration of public. (Ibid) Q: Assailed in a certiorari proceeding is an order of respondent Judge Climaco denying a motion filed by petitioner Ledesma to be allowed to withdraw as counsel de oficio. One of the grounds for such a motion was his allegation that with his appointment as Election Registrar by the COMELEC, he was not in a position to devote full time to the defense of the two accused. The denial by respondent Judge of such a plea, notwithstanding the conformity of the defendants, was due to its principal effect of delaying the case. Is the denial of Judge Climaco correct? A: Yes. The reluctance of Ledesma to comply with his responsibilities as counsel de oficio is not an adequate ground for the motion of withdrawal. Membership in the bar is a privilege burdened with a condition. For some lawyers especially the neophytes in the profession being appointed as a lawyer is an irksome chore. Law is a profession dedicated to the ideal of service and not a mere trade. Thus is made manifest the indispensable role of a member of the Bar in the defense of an accused. Such a consideration could have sufficed for Ledesma not being allowed to withdraw as counsel de oficio. For he did betray by his moves his lack of enthusiasm for the task entrusted to him, to put matters mildly. He did point though to his responsibility as an election registrar. Assuming his good faith, no such excuse could be availed now. There is not likely at present, and in the immediate future, an exorbitant demand on his time. (Ledesma v. Climaco, G.R. No. L-23815, June 28, 1974) Q: Ferrer was accused of having raped his 11year-old stepdaughter. Ferrers counsel of record was PAO's Atty. Macabanding. During the pretrial, both of them failed to appear. Ferrer was considered by the court as having jumped bail. Trial in absentia followed where Ferrer was assisted by another PAO lawyer, Atty. Alonto. Atty. Macabanding did not appear in all the
Q: When may refusal of a counsel to act as counsel de oficio be justified on grounds aside from the reasons of health, extensive travel abroad, or similar reasons of urgency? A: Other justified grounds for refusal to act as a counsel de oficio are: 1. Too many de oficio cases assigned to the lawyer; (People v. Daeng, G.R. No. L34091, Jan. 30, 1973) Conflict of interest; (Rule 14.03, CPR) Lawyer is not in a position to carry out the work effectively or competently; (supra) Lawyer is prohibited from practicing law by reason of his public office which prohibits appearances in court; and Lawyer is preoccupied with too many cases which will spell prejudice to the new clients.
2. 3. 4.
5.
Q: Atty. J. Bonanza, a semi-retired Metro Manila practitioner has a cattle ranch in the remote municipality of Nueva Ecija. He attends to his law office in Manila on Mondays, Tuesdays and Wednesdays, and the rest of the week he spends in his cattle ranch raising horses. In a criminal case pending before the Municipal Trial Court of Carranglan, the only other licensed member of the bar in the place is representing the complainant. The accused is a detention prisoner. The judge wants to expedite proceedings. What must proceedings? the judge do to expedite
A: The judge may appoint attorney Bonanza as counsel de oficio considering that the accused is a detention prisoner and therefore it is assumed that he has no financial means of engaging a paid counsel. (1988 Bar Question)
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subsequent hearings of the case. He did not inform the court of his whereabouts. Ferrer was found guilty beyond reasonable doubt of the crime charged and imposed upon him the death penalty. Did Atty. Macabanding live up to the demands expected from a counsel de oficio? A: No. Ferrer was not properly and effectively accorded the right to counsel. Canon 18 of the CPR requires every lawyer to serve his client with utmost dedication, competence and diligence. He must not neglect a legal matter entrusted to him. For all intents, purposes and appearances, Atty. Macabanding abandoned his client, an accused who stands to face the death penalty. While he faced the daunting task of defending an accused that had jumped bail, this unfortunate development is not a justification to excuse him from giving his heart and soul to the latter's defense. The exercise of their duties as counsel de oficio meant rendering full meaning and reality to the constitutional precepts protecting the rights of the accused. (People v. Ferrer, G.R. No. 148821, July 18, 2003) Q: What is the rule on the appointment of counsel de oficio for an accused who was convicted by the Regional Trial Court and is desirous of appealing from the judgment of conviction? A: If an accused is found guilty by the trial court and makes his intention to appeal the decision, the appellate court may appoint a counsel de oficio if it is shown by a certificate of the clerk of the court that: 1. 2. 3. The defendant is confined in prison and not able to file a bail bond; He is without means to employ an attorney de parte; and He desires to be represented by an attorney de oficio. amicus curiae or a request from the IBP or any of its chapter for rendition of free legal aid. He may, therefore, decline such appointment for serious and sufficient cause. For example, he may decline such appointment if it will involve a conflict of interest with another client. Q: Will your answer be different if the legal aid is requested in a civil case? A: My answer will not be exactly the same, because in a civil case, the lawyer can also decline if he believes the action or defense to be unmeritorious. He is ethically bound to maintain only actions and proceedings which appear to him to be just and only such defenses which he believes to be honestly debatable under the law. (2002 Bar Question)
Note: A lawyer may refuse to handle cases due to these valid reasons. However, Rule 2.02 requires him to give advice on preliminary steps if he is asked until the client secures the services of counsel. He shall refrain from giving this preliminary advice if there is conflict of interest between a present client and a prospective one for extending such legal advice will create and establish an attorney-client relationship between them and may involve a violation of the rule prohibiting a lawyer from representing conflicting interest.
Rule 14.04, Canon 14, CPR A lawyer who accepts the cause of a person unable to pay his professional fees shall observe the same standard of conduct governing his relations with paying clients. (2008 Bar Question) Q: Atty. Mariano Dajoyag, Jr. is Ernesto Ramos counsel. He failed to perfect their appeal before the SC. He filed the petition for certiorari within the 20-day period of extension that he sought in his 2nd motion for extension. He learned that the period of extension granted in his 1st motion for extension was inextendible only after the expiration of the 2 periods of extension that he prayed for. A complaint for negligence and malpractice was filed against him, to which he pleaded good faith and excusable neglect of duty. Is Atty. Dajoyag Jr. guilty of neglect of duty? A: Yes. Motions for extension are not granted as a matter of right but in the sound discretion of the court, and lawyers should never presume that their motions for extension or postponement will be granted or that they will be granted the length of time they prayed for.
Note: An appellant who is not confined in prison is not entitled to an attorney de oficio unless a request is made within ten days from notice to file the appellants brief and the right thereto is established by affidavit of poverty. (Sec. 13, Rule 122, RRC) (1993 Bar Question)
Q: May a lawyer decline a request for free legal aid to an indigent accused made by a chapter of the IBP? Explain. A: Rule 14.02 of the CPR provides that a lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de oficio or as
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Further, regardless of the agreement Atty. Dajoyag, Jr. had with Ramos with respect to the payment of his fees, Atty. Dajoyag, Jr. owed it to Ramos to do his utmost to ensure that every remedy allowed by law is availed of. Rule 14.04 of the Code of Professional Responsibility enjoins every lawyer to devote his full attention, diligence, skills, and competence to every case that he accepts. Pressure and large volume of legal work do not excuse Atty. Dajoyag, Jr. for filing the petition for certiorari out of time. Nevertheless, Atty. Dajoyag Jr. exerted efforts to protect the rights and interests of Ernesto Ramos, including trying to secure a reconsideration of the denial of the petition. Thus, he is guilty of simple neglect of duty. (Ramos v. Dajoyag, Jr., A.C. No. 5174, Feb. 28, 2002)
Note: The fact that his services are rendered without remuneration should not occasion a diminution in his zeal. (Ledesma v. Climaco, G.R. No. L-23815, June 28, 1974) Lawyers who devote their professional practice to representing litigants who could ill afford legal services deserve commendation. However, it is not enough to say that all pauper litigants should be assured of legal representation. They deserve quality representation as well. (Canoy v. Ortiz, A.C. No. 5485, Mar. 16, 2005) fidelity and absolute integrity in all his dealings and transactions with his clients and an utter renunciation of every personal advantage conflicting in any way, directly or indirectly, with the interest of his client. (Oparel Sr. v. Abaria, A.C. No. 959, July 30, 1971) If they find that their clients cause is defenseless, then it is their bounden duty to advise the latter to acquiesce and submit rather than to traverse the incontrovertible. (Rollon v. Atty. Naraval, A.C. No. 6424, March 4, 2005)
a. Confidentiality rule
Note: Confidentiality means the relation between lawyer and client or guardian and ward, or between spouses, with regard to the trust that is placed in the one by the other. (Blacks Law Dictionary 7th Edition 1990, 2004)
b. Privilege Communication Rule 15.02, Canon 15, CPR- A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client. (2008 Bar Question) Q. How is Rule 15.02 different from Canon 17? A: Rule 15.02 speaks of the duty of confidentiality to a prospective client while Canon 17 provides for the duty of confidentiality to an actual client. (Funa, 2009) Q: Are matters disclosed by a prospective client to a lawyer protected by the rule on privileged communication? A: Yes. The foregoing disqualification rule applies to prospective clients of a lawyer. Matters disclosed by a prospective client to a lawyer are protected by the rule on privileged communication even if the prospective client does not thereafter retain the lawyer or the latter declines the employment. The reason for this is to make the prospective client free to discuss whatever he wishes with the lawyer without fear that what he tells the lawyer will be divulged or used against him, and for the lawyer to be equally free to obtain information from the prospective client. (CPR Annotated, PhilJA)
Note: A privileged communication is one that refers to information transmitted by voluntary act of disclosure between attorney and client in confidence
2. CANDOR, FAIRNESS AND LOYALTY TO CLIENTS CANON 15, CPR - A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENT. (1991 Bar Question)
Q: What does the Code of Professional Responsibility provide pertinent to the lawyers duty as regards his dealings and transactions with clients? A: Canon 15 of the Code of Professional Responsibility provides that A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his client. A lawyer owes absolute fidelity to the cause of his client. He owes his client full devotion to his interest, warm zeal in the maintenance and defense of his rights.
Note: It demands of an attorney an undivided allegiance, a conspicuous and high degree of good faith, disinterestedness, candor, fairness, loyalty,
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and by means which, so far as the client is aware discloses the information to no third person other than one reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was given. Mere relation of attorney-client does not raise a presumption of confidentiality. (Pineda, 2009) For an information to be considered as privileged, it must be intended by the client as such. (CPR Annotated, PhilJA)
Q: What are the essential factors to establish the existence of the attorney-client privilege communication? A: 1. 2. 3. 4. 5. 6. 7. 8. Where the legal advice of any kind is sought From a professional legal adviser in his capacity as such The communications relating to that purpose Made in confidence By the client Are at his instance permanently protected From disclosure by himself or by the legal advisor Except if the protection be waived. (Hadjula v. Madianda, A.C. No. 6711, July 3, 2007) requisites of privilege
Q: Rosa Mercados husband filed an annulment against her. Atty. Julito Vitriolo represented her. Thereafter, a criminal action against her was filed by the latter for falsification of public document. According to Atty. Vitriolo, she indicated in the Certificates of Live Birth of her children that she is married to a certain Ferdinand Fernandez, and that their marriage was solemnized on April 11, 1979, when in truth, she is legally married to Ruben Mercado and their marriage took place on April 11, 1978. Mercado claims that the criminal complaint disclosed confidential facts and information relating to the civil case for annulment handled by Vitriolo as her counsel. Did Atty. Julito Vitriolo violate the rule on privileged communication between attorney and client? A: Evidence on record fails to substantiate Mercados allegations. She did not even specify the alleged communication in confidence disclosed by Atty. Vitriolo. All of Mercados claims were couched in general terms and lacked specificity. Without any testimony from Mercado as to the specific confidential information allegedly divulged by Atty. Vitriolo without her consent, it is difficult, if not impossible to determine if there was any violation of the rule on privileged communication. It is not enough to merely assert the attorneyclient privilege. The burden of proving that the privilege applies is placed upon the party asserting the privilege. (Mercado v. Vitrilio, A.C. No. 5108, May 26, 2005) Q: What is the test in determining whether a communication to an attorney is covered by the rule on privilege communication? A: Whether the communications are made to an attorney with view of obtaining from him personal assistance or advice regardless of whether there is a pending or merely impending litigation or any litigation. Q: What are the purposes of making the communication privileged? A:
Q: what are the communication? A: 1.
2.
3.
There is attorney-client relationship or a kind of consultancy requirement with a prospective client; The communication was made by the client to the lawyer in the course of the lawyers professional employment; The communication must be intended to be confidential.
Note: The privilege continues to exist even after the termination of the attorney-client relationship. It outlasts the lawyers engagement. The privileged character of the communication ceases only when waived by the client himself or after his death, by the heir or legal representative. (Baldwin v. CIR, 94 F. 2d 355, 20 AFTR 940) Note: The party who avers that the communication is privileged has the burden of proof to establish the existence of the privilege unless from the face of the document itself, it clearly appears that it is privileged. The mere allegation that the matter is privileged is not sufficient. (People v. Sleeper, No. 22783, December 3, 1924; Lapena Jr., 2009)
1.
2.
To encourage a client to make a full disclosure of the facts of the case to his counsel without fear To allow the lawyer freedom to obtain full information from his client.
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Q: What are the characteristics of privileged communication? A: 1. Attorney- client privilege where legal advice is professionally sought from an attorney The client must intend the above communication to be confidential Attorney-client privilege embraces all forms of communication and action As general rule, attorney-client privilege also extends to the attorneys secretary, stenographer, clerk or agent with reference to any fact acquired in such capacity The above duty is perpetual and communication is absolutely privilege from disclosure Persons entitled to claim privileges would extend to Takao in securing a permanent visa in the Philippines. Atty. Acejas did nothing. Did Atty. Acejas violate the legal ethics of the profession? A: Yes. The Court reminds lawyers to follow legal ethics when confronted by public officers who extort money. If the extortion is directed at the client, they must advise the client not to perform any illegal act. Moreover, they must report it to the authorities, without having to violate the attorney-client privilege. Naturally, they must not participate in the illegal act. Atty. Acejas did not follow these guidelines. Worse, he conspired with the extortionists. (Acejas III v. People, G.R. No. 156643, June 27, 2006) Q: May a lawyer invoke privileged communication to refuse revealing his clients secrets in the course of professional employment? A: Yes. Rule 15.02 of the Code provides that A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client. Q: What is the communication? duration of privilege
2. 3. 4.
5.
6.
Q: Who are the persons entitled to claim the privilege? A: The attorney-client privilege covers: 1. Lawyer; 2. Client; and 3. Third persons who by reason of their work have acquired information about the case being handled such as: a. Attorneys secretary, stenographer and clerk; b. Interpreter, messengers and agents transmitting communication; and c. An accountant, scientist, physician, engineer who has been hired for effective consultation. (Sec. 24(b), Rule 130, RRC) Q: Bureau of Immigration and Deportation (BID) Intelligence Agent Hernandez, together with a reporter, went to the house of Aoyagi, a Japanese national. He was told that there were complaints against him in Japan and that he was suspected to be a Yakuza big boss, a drug dependent and an overstaying alien. To prove that he had done nothing wrong, Aoyagi showed his passport to Hernandez who confiscated the same. A Contract for Legal Services was entered into by Aoyagi and Atty. Acejas III. Aoyagi paid Atty. Acejas P40,000.00, P25,000 of which is 50% of the acceptance fee, and the P15,000.00 is for filing/docket fee. Hernandez, in the presence of Atty. Acejas, proposed that Aoyagi pay the amount of P1 million in exchange for the help he
A: The privilege continues to exist even after the termination of the attorney- client relationship.
Note: The privilege character of the communication ceases only when waived by the client himself or after his death, by his heir or legal representative. (Lapena, Jr. 2009)
Q: When is communication not privileged? A: A communication made by a client to a lawyer is not privileged: 1. After pleading has been filed.
Note: Pleading ceases to be privileged communication becomes part of public records.
2.
When communication was intended by the client to be sent to a third person through his counsel.
Note: It loses its confidential character as soon as it reaches the hands of a third person.
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3. When the communication sought by client is intended to aid future crime or perpetration of fraud.
Note: Past crime is covered by the privilege.
Q: What are the three tests to determine the existence of conflicting interests? A: 1. Conflicting Duties - When, on behalf of one client, it is the attorneys duty to contest for that which his duty to another client requires him to oppose or when possibility of such situation will develop. Invitation of Suspicion - Whether the acceptance of the new relation will prevent a lawyer from the full discharge of his duty of undivided fidelity and loyalty to his client or will invite suspicion of unfaithfulness or double-dealing in the performance thereof. Use of Prior Knowledge Obtained Whether a lawyer will be called upon in his new relation to use against the first client any knowledge acquired in the previous employment.
4.
When communication between attorney and client is heard by a third party.

Note: Third party testimony is admissible as evidence.
2.
5.
When there is consent or waiver of the client. When the law requires disclosure. When disclosure is made to protect the lawyers rights
Note: to collect his fees or defend himself, his employees or associates or by judicial action (Rule 21.01, CPR)
6. 7.
3.
Note: Even if the communication is unprivileged, the rule of ethics prohibits lawyers from voluntarily revealing or using to his benefit or to that of a third person, to the disadvantage of the client, the said communication unless the client consents thereto. .(Sec. 3, Rule 138-A, RRC)
Q: What are the types of conflict of interest? A: 1.
c. Conflict of Interest (1991, 1992, 1993, 1994, 1997, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008 Bar Questions) Rule 15.01, Canon 15, CPR - A lawyer, in conferring with a prospective client, shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client. Q: What is conflict search? A: It is examining the causes of action between the prospective client and the lawyers current clients. Q: What is the purpose of conflict search? A: By conducting a conflict search, the lawyer will be able to determine, in the first instance, if he is barred from accepting the representation through conflicts with his present clients or the lawyers own interest. (CPR Annotated, PhilJA)
Concurrent or multiple representations Generally occurs when a lawyer represents clients whose objectives are adverse to each other, no matter how slight or remote such adverse interest may be. The tests for concurrent representations are: a. or multiple
Whether a lawyer is duty-bound to fight for an issue or claim in behalf of one client and, at the same time, to oppose that claim for the other client; Whether the acceptance of a new relation would prevent the full discharge of the lawyers duty of undivided fidelity or loyalty to the client; Whether the acceptance of new relation would invite suspicion of unfaithfulness or double-dealing in the performance of the lawyers duty of undivided fidelity and loyalty; and Whether, in the acceptance of a new relation, the lawyer would be called upon to use against a client confidential information acquired through their connection.
b.
c.
d.
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2. Sequential or successive representation Involves representation by a law firm of a present client who may have an interest adverse to a prior or former client of the firm. (CPR Annotated, PhilJA) were reportedly contracted for P100,000. 00. Several long distance telephone calls and two trips to Las Vegas by him elicited the information that indeed petitioners brother has an outstanding account to Caesars but further investigations, however, revealed that said account had actually been incurred by Ramon Sy, with petitioners brother merely signing for the chits. Private respondent personally talked with the president of Caesar's Palace and convinced the latters president to go after Sy instead to which the latter agreed with the condition that private respondent should first convince Sy to pay the indebtedness to which respondent succeeded. He was able to free petitioners brother from his indebtedness. Having thus settled the account of petitioner's brother, private respondent sent several demand letters to petitioner demanding the balance of P50,000.00 as attorney's fees. Petitioner, however, ignored these, thus, private respondent filed a complaint against petitioner for the collection of attorney's fees and refund of transport fare and other expenses. Petitioners claimed, that at the time private respondent was rendering services to petitioner, he was actually working "in the interest" and "to the advantage" of Caesar's Palace of which he was an agent and a consultant. This being the case, private respondent is not justified in claiming that he rendered legal services to petitioner in view of the conflicting interests involved. Did the respondent violate the conflict of interest rule? A: No. Generally, an attorney is prohibited from representing parties with contending positions. However, at a certain stage of the controversy before it reaches the court, a lawyer may represent conflicting interests with the consent of the parties. A common representation may work to the advantage of said parties since a mutual lawyer, with honest motivations and impartially cognizant of the parties' disparate positions, may well be better situated to work out an acceptable settlement of their differences, being free of partisan inclinations and acting with the cooperation and confidence of said parties. A lawyer is entitled to have and receive the just and reasonable compensation for services rendered at the special instance and request of his client and as long as he is honestly and in good faith trying to serve and represent the interests of his client, the latter is bound to pay his just fees. (Dee v. Court of Appeals, G.R. No. 77439, August 24, 1989)
Note: What is material in determining whether there is a conflict of interest in the representation is probability, not certainty of conflict.
Illustration: Existence of conflict of Interest 1. A v. B A and B are present clients C v. D; E v. D C is the present client and D is not a present client in the same case but is a present client in another case F v. G; H v. G F is the present client and G was a former client and the cases are related I v. J; K v. J I is the present client and J was a former client in a case that is unrelated. L, M, N v. O, P, Q L, M, N are present clients but L and M joins O, P, Q (People v. Davis)
2.
3.
4.
5.
Q: What are the other instances of conflict of interests? A: 1. 2. A corporate lawyer cannot join a labor union of employees in that corporation; A lawyer of an insurance corporation who investigated an accident cannot represent the complainant/injured person; As a receiver of a corporation, he cannot represent the creditor; As a representative of the obligor, he cannot represent the obligee; and As a lawyer representing a party in a compromise agreement, he cannot, subsequently, be a lawyer representing another client who seeks to nullify the agreement.
3. 4. 5.
Q: Petitioner and his father went to the residence of private respondent to seek his advice regarding the problem of the alleged indebtedness of petitioner's brother to Caesar's Palace, a well-known gambling casino at Las Vegas, Nevada, U.S.A. Private respondent assured petitioner and his father that he would inquire into the matter, after which his services
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Q: Can a lawyer engaged by a corporation defend members of the board of the same corporation in a derivative suit? A: No. The interest of the corporate client is paramount and should not be influenced by any interest of the individual corporate officials. A lawyer engaged as counsel for a corporation cannot represent members of the same corporation's board of directors in a derivative suit brought against them. To do so would be tantamount to representing conflicting interests, which is prohibited by the Code of Professional Responsibility. (Hornilla v. Atty. Salunat, A.C. No. 5804, July 1, 2003) Q: Six months ago, Atty. Z was consulted by A, about a four-door apartment in Manila left by her deceased parents. A complained that her two siblings, B and C, who were occupying two units of the apartment, were collecting the rentals from the other two units and refusing to give her any part thereof. Atty. Z advised A to first seek the intervention of her relatives and told her that if this failed, he would take legal action as A asked him to do. B asks Atty. Z to defend him in a suit brought by A against him (B) and C through another counsel. Should Atty. Z accept the case? A: No. When A consulted him about her complaint against B and C, a lawyer-client relationship was created between A and Atty. Z. Atty. Z cannot subsequently represent B against A in a matter he was consulted about. This constitutes conflict of interest. It does not matter if Atty. Z is not handling the case for A. Q: Should Atty. Z tell B that A consulted him earlier about the same case? Why? A: Yes. Rule 21.07 of the CPR provides that a lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest. In this case, he has to reveal to B that he had been consulted by A on the case that B if offering to retain his services, in order to avoid a possible conflict of interest. (2002 Bar Question) Rule 15.03, Canon 15, CPR A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts. GR: An attorney cannot represent diverse interests. It is highly improper to represent both sides of an issue. The proscription against representation of conflicting interest finds application where the conflicting interest arise with respect to the same general matter and is applicable however slight such adverse interest may be. It applies although the attorneys intention and motives were honest and he acted in good faith. XPN: Representation of conflicting interest may be allowed where the parties consent to the representation after full disclosure of facts. (Nakpil v. Valdez, A.C. No. 2040, Mar. 4, 1998)
Note: A lawyer may at a certain stage of the controversy and before it reaches the court represent conflicting interests with the express written consent of all parties concerned given after disclosure of the facts. The disclosure should include an explanation of the effects of the dual representation, such as the possible revelation or use of confidential information. An attorney owes loyalty to his client not only in the case in which he has represented him but also after relation of attorney and client has terminated.
Q: What are the instances when a lawyer may not represent conflicting interests despite consent of both parties concerned? A: Where the conflict is: 1. 2. Between the attorneys interest and that of a client; or Between a private clients interests and that of the government or any of its instrumentalities.
Q: What are the effects of representing adverse interests? A: DJ-FAC 1. Disqualification as counsel of new client on petition of former client; 2. Where such is unknown to, and becomes prejudicial to the interests of the new client, a Judgment against such may, on that ground, be set aside; 3. The attorneys right to Fees may be defeated if found to be related to such conflict and such was objected to by the former client, or if there was a concealment and prejudice by reason of the attorneys previous professional relationship with the opposite party;
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4. A lawyer can be held Administratively liable through disciplinary action and may be held Criminally liable for betrayal of trust. Responsibility and for defying the prohibition against private practice of law while working as government prosecutor. Is Atty. Sagucio guilty of engaging in private practice of law while working as an Assistant Provincial Prosecutor? A. Yes. Private practice of law contemplates a succession of acts of the same nature habitually or customarily holding ones self to the public as a lawyer. Atty. Sagucio admitted that he rendered his legal services to complainant while working as a government prosecutor. Even the receipts he signed stated that the payments by Taggat were for Retainers fee. Thus, as correctly pointed out by complainant, Atty. Sagucio clearly violated the prohibition in RA 6713. Atty. Sagucios violation of RA 6713 also constitutes a violation of Rule 1.01 of Canon 1, which mandates that *a+ lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. His admission that he received from Taggat fees for legal services while serving as a government prosecutor is an unlawful conduct, which constitutes a violation of Rule 1.01. (LimSantiago v. Saguico, A.C. No. 6705, March 31,2006)
Note: Violations of RA 6713 are not subject to disciplinary action under the Code of Professional Responsibility unless the violations also constitute infractions of specific provisions of the Code of Professional Responsibility. Certainly, the IBP has no jurisdiction to investigate violations of RA 6713 the Code of Conduct and Ethical Standards for Public Officials and Employees unless the acts involved also transgress provisions of the Code of Professional Responsibility.
Q: Huey Company and Dewey Corporation are both retainer clients of Atty. Anama. He is the corporate secretary of Huey Company. He represents Dewey Corporation in three pending litigation cases. Dewey Corporation wants to file a civil case against Huey Company and has requested Atty. Anama to handle the case. What are the options available to Atty. Anama? Explain your answer. A: 1. To decline to accept the case because to do so will constitute representing conflicting interests. It is unethical for a lawyer to represent a client in a case against another client in the same case. To accept to file the case against Huey Company, after full disclosure to both retained clients and upon their express and written consent. The written consent may free him from the charge of representing conflicting interests, because written consent amounts to a release by the clients of the lawyers obligation not to represent conflicting interests.
2.
Q: If you were Atty. Anama, which option would you take? Explain. A: If I were Atty. Anama, I will choose the first option and inhibit myself in the case as both entities are my clients. The conflict of interests between the contending clients may reach such a point that, notwithstanding their consent to the common representation, the lawyer may be suspected of disloyalty by one client. His continuing to act in a double capacity strikes deeply in the foundation of the attorney-client relationship. Q: Atty. Sagucio was the former Personnel Manager and Retained Counsel of Taggat Industries Inc. until his appointment as Assistant Provincial Prosecutor of Tuguegarao. Taggat Industries was sequestered by the PCGG and thus ceased its operations. As Assistant Provincial Prosecutor, he assigned to conduct the preliminary investigation over a criminal case filed against Taggat Industries. He recommended the filing of 651 informations for violation of the Labor Code. He was charged for violating Rule 15.03 of the Code of Professional
Rule 15.04, Canon 15, CPR A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in settling disputes.
Note: Where the lawyer performs the function of mediator, conciliator, or arbitrator in disputes where the lawyer labors under a conflict of interest, he remains subject to the requirement of a prior written informed consent from all parties concerned. The requirement subsists even if the adverse interest is very slight, and notwithstanding the lawyers honest intention and motive. (CPR Annotated, PhilJA)
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d. Candid and Honest Advice to Clients Rule 15.05, Canon 15,CPR - A lawyer when advising his client, shall give a candid and honest opinion on the merits and probable results of the client's case, neither overstating nor understating the prospects of the case.
Note: The lawyer must temper his clients propensity to litigate. (Cobb-Perez v. Lantin, No. L-22320, July 29, 1968) As officers of the court, counsels are under obligation to advice their clients against making untenable and inconsistent claims. The counsel should inform his client and dissuade him from filing the case if it is totally devoid of merit. If he finds that his clients cause is fairly meritorious and ripe for judicial adjudication, he should refrain from making bold and confident assurance of success.
Rule 15.05 of the Code of Professional Responsibility requires that lawyers give their candid and best opinion to their clients on the merit or lack of merit of the case, neither overstating nor understating their evaluation thereof. Knowing whether a case would have some prospect of success is not only a function, but also an obligation on the part of lawyers. If they find that their client's cause is defenseless, then it is their bounden duty to advise the latter to acquiesce and submit, rather than to traverse the incontrovertible. (Rollon v. Naraval, A.C. No. 6424, Mar. 4, 2005)
Note: As officers of the court, counsels are under the obligation to advise their client against making untenable and inconsistent claims. Lawyers are not merely hired employees who must unquestionably do the bidding of the client, however unreasonably this may be when tested by their own expert appreciation of the facts and applicable law and jurisprudence. COUNSEL MUST COUNSEL. (G.R. No. 91298, June 22, 1990).
Q: Consorcia Rollon went to the office of Atty. Camilo Naraval to seek his assistance in a case filed against her by Rosita Julaton for Collection of Sum of Money with Prayer for Attachment. After going over the documents she brought with her, Atty. Naraval agreed to be her lawyer and she was required to pay P8,000.00 for the filing and partial service fee. Atty. Naraval did not inform her that the said civil suit has been decided against her and which judgment has long become final and executory. Atty. Naraval was not able to act on the case. Because of this, Rollon wanted to withdraw the amount she has paid and to retrieve the documents pertaining to said case. Unfortunately, despite several follow-ups, Atty. Naraval always said that he cannot return the documents because they were in their house, and that he could not give her back the P8,000.00 because he has no money. Did Atty. Naraval fail to fulfill his undertakings? A: Yes. Despite his full knowledge of the finality based on the documents furnished to him, Atty. Naraval withheld such vital information and did not properly appraise Rollon. He should have given her a candid and honest opinion on the merits and the status of the case. But he withheld such vital information. He did not inform her about the finality of the adverse judgment. Instead, he demanded P8,000 as filing and service fee and thereby gave her hope that her case would be acted upon.
Q: A Criminal Case was for Perjury and initiated by the complainant's wife, Leni. This complaint arose from the alleged untruthful statements or falsehoods in the complainant's Petition for Naturalization. In due course, an information was filed in MCTC charging the complainant herein with perjury allegedly committed. it was alleged that the accused knew that his wife and children were not residing at the said address stated in his petition, having left 5 years earlier. The accused was also alleged to be carrying out an immoral and illicit relationship. After trial, the Judge Tiongson rendered judgment and found the complainant herein guilty beyond reasonable doubt of the crime of perjury. Thus, Judge Chiongson was charged with grave misconduct, gross bias and partiality and having knowingly rendered an unjust judgment in said criminal case. Complainant alleged that the said judge failed to divulge the next-door-neighbor relationship between him and the family of Leni and to disqualify himself from sitting in the said case. Is respondent judge guilty for not disqualifying himself from the said case? A: No. As to the respondent Judge's being a nextdoor neighbor of the complainant's wife the complainant in the perjury case it must be stressed that that alone is not a ground for either a mandatory disqualification under the first paragraph or for a voluntary disqualification
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under the second paragraph of Section 1, Rule 137 of the Rules of Court. In any event, the complainant has failed to disclose in his complaint that he had raised this matter at any time before the rendition of the judgment. In fact, the summary of the grounds of his motion for reconsideration in the respondent's order denying the said motion does not include this matter. (Choa v. Chiongson, A.M. No. MTJ-951063, February 9, 1996) Rule 15.06, Canon 15, CPR - A lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body. (influence peddling)
Note: this rule is known as INFLUENCE-PEDDLING. It is improper for a lawyer to show in any way that he has connections and can influence any tribunal or public official, judges, prosecutors, congressmen and others, especially so if the purpose is to enhance his legal standing and to entrench the confidence of the client that his case or cases are assured of victory.
public office to enhance a lawyer's prestige. Public confidence in law and lawyers may be eroded by such reprehensible and improper conduct. (Paas v. Almarvez, A.M. No. P-03-1690, Apr. 4, 2003) Rule 15.07, Canon 15, CPR. - A lawyer shall impress upon his client compliance with the laws and the principles of fairness. Q: Nicanor Gonzales and Salud Pantanosas were informed by the Register of Deeds that their owner's duplicate of title covering their lands were entrusted to the office secretary of Atty. Miguel Sabacajan, who in turn entrusted the same to said attorney. The latter admitted that the titles are in his custody and has even shown the same to the two. When demanded to make delivery of said titles, he refused saying that he was holding the certificates of title in behalf of his client, Samto Uy, one of his clients who apparently has monetary claims against Nicanor and Salud. He even challenged the complainants to file any case in any court even in the Honorable Supreme Court. Did Atty. Sabacajan defy legal and moral obligations emanating from his professional capacity as a lawyer? A: Yes. As a lawyer, he should know that there are lawful remedies provided by law to protect the interests of his client. Atty. Sabacajan has not exercised the good faith and diligence required of lawyers in handling the legal affairs of their clients. If Nicanor and Salud did have the alleged monetary obligations to his client, that does not warrant his summarily confiscating their certificates of title since there is no showing in the records that the same were given as collaterals to secure the payment of a debt. Neither is there any intimation that there is a court order authorizing him to take and retain custody of said certificates of title. Apparently, Atty. Sabacajan has disregarded Canon 15, Rule 15.07 of the Code of Professional Responsibility which provides that a lawyer shall impress upon his client the need for compliance with the laws and principles of fairness. Instead, he unjustly refused to give to Gonzales and Pantanosas their certificates of titles supposedly to enforce payment of their alleged financial obligations to his client and presumably to impress the latter of his power to do so. (Gonzales v. Sabacajan, A.C. No. 4380, Oct. 13, 1995)
Q: In a case for inhibition filed against Judge Paas, it was found that her husband, Atty. Renerio Paas, was using his wife's office as his office address in his law practice. Judge Paas admitted that Atty. Paas did use her office as his return address for notices and orders in 2 criminal cases, lodged at the Pasay City RTC, but only to ensure and facilitate delivery of those notices, but after the cases were terminated, all notices were sent to his office address in Escolta. Was Atty. Paas act of using his wifes office as his office address unprofessional and dishonorable? A: Yes. By allowing Atty. Paas to use the address of her court in pleadings before other courts, Judge Paas had indeed allowed her husband to ride on her prestige for the purpose of advancing his private interest. Atty. Paas is guilty of simple misconduct because of using a fraudulent, misleading, and deceptive address that had no purpose other than to try to impress either the court in which his cases are lodged, or his client, that he has close ties to a member of the judiciary, in violation of the Code of Professional Responsibility. The need for relying on the merits of a lawyer's case, instead of banking on his relationship with a member of the bench which tends to influence or gives the appearance of influencing the court, cannot be overemphasized. It is unprofessional and dishonorable, to say the least, to misuse a
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Q: Maria Cielo Suzuki entered into contracts of sale and real estate mortgage with several persons. The sale and mortgage transactions were facilitated by Atty. Erwin Tiamson, counsel of the sellers. Suzuki paid P80,000 as her share in the expenses for registration. He retained in his possession the subject deeds of absolute sale and mortgage as well as the owner's copy of the title. However, he never registered the said documents and did not cause the transfer of the title over the subject property in the name of Suzuki. Atty. Tiamson said that he did not register the deed of sale to protect the interest of his client and even if the same has been registered, he cannot give him the owner's duplicate copy until purchase price for the subject property has been fully paid and the real estate mortgage cancelled. Is Atty. Tiamson justified in not registering the transaction? A: No. Rule 15.07 obliges lawyers to impress upon their clients compliance with the laws and the principle of fairness. To permit lawyers to resort to unscrupulous practices for the protection of the supposed rights of their clients is to defeat one of the purposes of the State, the administration of justice. While lawyers owe their entire devotion to the interest of their clients and zeal in the defense of their client's right, they should not forget that they are, first and foremost, officers of the court, bound to exert every effort to assist in the speedy and efficient administration of justice. The client's interest is amply protected by the real estate mortgage executed by complainant. Thus, Atty. Tiamson failed to live up to this expectation. (Suzuki v. Tiamson, A.C. No. 6542, Sept. 30, 2005) Rule 15.08, Canon 15, CPR. - A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity.
Rationale: Intended to avoid confusion; it is for the benefit of both the client and the lawyer (Funa, 2009). Note: The lawyer should inform the client when he is acting as a lawyer and when he is not, because certain ethical considerations governing the clientlawyer relationship may be operative in one case and not in the other. (Report of the IBP Committee, p.84) A partys engagement of his counsel in another capacity concurrent with the practice of law is not prohibited, so long as the roles being assumed by such counsel is made clear to the client. (New Sampaguita Builder Construction, Inc. v. Philippine National Bank, G.R. No. 148753, July 30, 2004)
3. CLIENTS MONEYS AND PROPERTIES CANON 16, CPR - A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS POSSESSION. (2008 Bar Question)
Note: Money collected by the lawyer on a judgment favorable to his client constitute trust funds and should be immediately paid over to the client. While Section 37, Rule 138 of the Rules of Court grants the lawyer a lien upon the funds, documents and papers of his client, which have lawfully come into his possession, such that he may retain the same until his lawful fees and disbursements have been paid, and apply such funds to the satisfaction thereof, the lawyer still has the responsibility to promptly account to his client for such moneys received. Failure to do so constitutes professional misconduct. The lawyers failure to turn over such funds, moneys, or properties to the client despite the latters demands give rise to the presumption that the lawyer had converted the money for his personal use and benefit. This failure also renders the lawyer vulnerable to judicial contempt under Section 25, Rule 138 of the Rules of Court. (CPR Annotated, PhilJA)
Q: Luis de Guzman as defendant in a civil case, obtained an adverse judgment. His counsel was Atty. Emmanuel Basa. He wants to challenge the decision through a petition for certiorari. It was agreed that Luis will pay P15,000 for said legal service. Atty. Basa collected a down payment of P5,000. However, no such petition was filed. He did not seasonably file with the CA the required appellants brief resulting in the dismissal of the appeal. Despite several extensions to file the appellants brief, Atty. Basa failed to do so. Instead, he filed two more motions for extension. When he filed the appellants brief, it was late, being beyond the last extension granted by the appellate court. Was Atty. Emmanuel Basa negligent in the performance of his professional duty to Luis de Guzman? A: Yes, he is guilty of gross misconduct. Where a
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client gives money to his lawyer for a specific purpose, such as to file an action or appeal an adverse judgment, the lawyer should, upon failure to take such step and spend the money for it, immediately return the money to his client. His unjustified withholding of Luis money is a gross violation of the general morality and professional ethics. (De Guzman v. Atty. Emmanuel Basa, A.C. No. 5554, June 29, 2004) Q: Is a lawyer prohibited from acquiring properties of his client? A: Yes, pursuant to Canon 16 of the Code of Professional Responsibility. Furthermore, Article 1491 of the Civil Code states that: The following persons cannot acquire or purchase, even at public or judicial auction, either in person or through the mediation of another: xxx (5) lawyers, with respect to the property and rights which may be the object of any litigation in which they take part by virtue of their profession.
Note: This prohibition is entirely independent of fraud and such need not be alleged or proven. Art. 1491 (5) of the NCC applies only if the sale or assignment of the property takes place during the pendency of the litigation involving the clients property. (Ramos v. Ngaseo, A.C. No. 6210, Dec. 9, 2004)
3. 4.
5. 6.
7.
8.
Where the attorney at the time of the purchase was not the counsel in the case; Where the purchaser of the property in litigation was a corporation even though the attorney was an officer thereof; Where the sale took place after the termination of the litigation; A lawyer may accept an assignment from his client of a money judgment rendered in the latters favor in a case in which he was not counsel, in payment of his professional services performed in another case; In a contract for attorneys fees contingent upon the outcome of the litigation (contingent fee arrangement); and When any of the four elements of Art. 1491 is missing.
Q: what are the effects of violation of such provision? A: 1. 2. Malpractice on the part of the lawyer and may be disciplined for misconduct; Transaction is null and void.
a. Fiduciary Relationship
Rule 16.01, Canon 16,CPR - A lawyer shall account for all money or property collected or received for or from the client.
Note: A lawyer must be scrupulously careful in handling money entrusted to him in his professional capacity, because of the high degree of fidelity and good faitn expected on his part. (Medina v. Bautista, A.C. No. 190, September 1964)
Q: What are the elements of prohibition against the purchase of property in litigation under Art. 1491 of the NCC? A: 1. 2. 3. 4. There is an attorney-client relationship The property is in litigation The attorney is the counsel of record in the case; and The attorney, by himself or through an agent, purchases such property during the pendency of said case.
Q: What is the nature of attorney-client relationship? A: An attorney-client privilege is highly fiduciary as it is founded on trust and confidence where the lawyer acts as the trustee and the client acting as trustor in regard to the matter subject of the professional engagement.( Antiquiera, 2007) Q: X sought assistance to the president of the IBP to enable him to talk to Atty. U who had allegedly been avoiding him for more than a year. Atty. U failed to turnover to his client the amount given to him by X as settlement for a civil case. Is Atty. U guilty for violating Canon 16 of the Code of Professional Responsibility?
Q: What are the instances where the rule under Article 1491 of NCC is inapplicable? A: 1. 2. Where the property purchased by the lawyer was not involved in the litigation; Where the sale took place before it became involved in the suit;
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A: Yes. The Code of Professional Responsibility mandates every lawyer to hold in trust all money and properties of his client that may come into his possession. A lawyers failure to return upon demand the funds or property held by him on behalf of his client gives rise to the presumption that he has appropriated the same for his own use to the prejudice of, and in violation of the trust reposed in him by, his client. The relation between attorney and client is highly fiduciary in nature. Being such, it requires utmost good faith, loyalty, fidelity and disinterestedness on the part of the attorney. Its fiduciary nature is intended for the protection of the client. For misappropriating and failing to promptly report and deliver the money report and deliver the money received on behalf of their children of their clients, some lawyers have been disbarred while others have been suspended for six months. Since it appears to be the first case of respondent lawyer, the lighter penalty is imposed on him. (Espiritu vs. Ulep, A.C. No. 5808, May 4,2005) Q: What is fiduciary duty? A: The principle that an attorney derives no undue advantage that may operate to the prejudice or cause an occasion for loss of a client. The relationship between the lawyer and client is one of mutual trust and confidence of the highest degree. Q: When will the liability of a lawyer for breach of fiduciary obligation arise? A: A lawyer may be held liable if he fails in his obligation to make an accounting of funds or property that may come to his possession for a lawyer holds his clients funds or property in trust for his client. Q: What are the requisites for the liability of a lawyer for damages? A: AWI 1. Attorney-client relationship; 2. Want of reasonable care and diligence by lawyer; and 3. Injury sustained by client as a proximate result of the lawyers negligence. Q: When will civil liability arise? A: 1. 2. 3. Client is prejudiced by lawyer's negligence or misconduct; Breach of fiduciary obligation; Civil liability to third persons; 4. 5. Libelous words in pleadings; violation of communication privilege; Liability for costs of suit (treble costs) when lawyer is made liable for insisting on client's patently unmeritorious case or interposing appeal merely to delay litigation.
Q: What are the effects of lawyers failure to return clients money or property after demand? A: 1. 2. 3. 4. There will be a presumption that the lawyer misappropriated the same; It will give rise to civil liability of the lawyer; Criminal liability; and Administrative liability.
Q: When is a lawyer not liable for libelous words in the pleadings? A: A lawyer is exempted from liability for slander, libel or for words otherwise defamatory, published in the course of judicial proceedings, provided the statements are connected with, relevant, pertinent and material to the cause in hand or subject of inquiry.
Note: Test of relevancy The matter to which the privilege does not extend must be palpably wanting in relation to the subject of controversy, that no reasonable man can doubt its relevancy or propriety. Pleadings should contain plain and concise statements of material facts and if pleader goes beyond requisites of law and alleges irrelevant matter, which is libelous, he loses his privilege and may be liable in a separate suit.
Q: When will criminal liability exist? A: A lawyer may be held criminally liable if he commits any of the following: 1. Causing prejudice to the client thru malicious breach of professional duty or thru inexcusable negligence or ignorance; Revealing clients secrets learned in lawyers professional capacity thru malicious breach of professional duty or inexcusable negligence or ignorance; A lawyer who has undertaken the defense of a client or has received confidential information from said client in a case may be criminally liable for undertaking defense of opposing party in same cause without consent of first client; (Art. 209, RPC)
2.
3.
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4. A lawyer who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with intent to cause such damage, shall use any false document may be held criminally liable therefor; (Art. 172, RPC) and A lawyer who misappropriates his clients funds may be held liable for estafa. should be reported by the latter and account any circumstances, and should not be commingled with his own or be used by him. (Espiritu v. Cabredo, A.C. No. 5831, Jan. 13, 2003) Q. Atty. Magulta received 25,000 pesos from complainant for filing fees of a civil case to be filed. However, Atty. Magulta never filed the complaint. When complainant discovered this, he filed a a complaint for disbarment against the counsel. Should Atty. Magulta be held liable for the appropriation of funds in his own purposes? A: Yes. In failing to apply to the filing fee the amount given by complainant -- as evidenced by the receipt issued by the law office of Atty. Magulta -- the latter also violated the rule that lawyers must be scrupulously careful in handling money entrusted to them in their professional capacity. Rule 16.01 of the Code of Professional Responsibility states that lawyers shall hold in trust all moneys of their clients and properties that may come into their possession. Lawyers who convert the funds entrusted to them are in gross violation of professional ethics and are guilty of betrayal of public confidence in the legal profession. It may be true that they have a lien upon the clients funds, documents and other papers that have lawfully come into their possession; that they may retain them until their lawful fees and disbursements have been paid; and that they may apply such funds to the satisfaction of such fees and disbursements. However, these considerations do not relieve them of their duty to promptly account for the moneys they received. Their failure to do so constitutes professional misconduct. In any event, they must still exert all effort to protect their clients interest within the bounds of law. (Burbe vs. Magulta, A.C. No. 5713, June 10,2002) c. Delivery of Funds Rule 16.03, Canon 16, CPR - A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.
5.
Note: When a lawyer collects or receives money from his client for a particular purpose, he should promptly account to the client how the money was spent. His failure either to render an accounting or to return the money (if the intended purpose of the money does not materialize) constitutes a blatant disregard of Rule 16.01 of the CPR.(Belleza v. Malaca, A.C. No. 7815, July 23, 2009) Note: If a lawyer does not use the money for the intended purpose, the lawyer must immediately return the money to the client. (Villanueva v. Gonzales, A.C. No. 7657, February 12, 2008)
b. Co-Mingling of Funds Rule 16.02, Canon 16, CPR - A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him.
Note: Failure of the lawyer to account all the funds and property of his client which may come into his possession would amount to misappropriation which may subject him to disbarment on the ground of grave misconduct or a criminal prosecurion for estafa under Art. 315, par. 1(b) of the RPC.
Q: BPI filed two complaints for replevin and damages against Esphar Medical Center Inc. and its president Cesar Espiritu. Espiritu engaged the services of Atty. Juan Cabredo IV. While these cases were pending in court, the latter advised Esphar to remit money and update payments to the bank through the trial court. Accordingly, Esphar's representative delivered a total of P51,161 to Atty. Cabredo's office. However, the management of Esphar found out that he did not deliver said money to the court or to the bank. Did Atty. Cabredo commit a breach of trust? A: Yes. His act amounted to deceit in violation of his oath. The relationship between a lawyer and a client is highly fiduciary; it requires a high degree of fidelity and good faith. Hence, in dealing with trust property, a lawyer should be very scrupulous. Money or other trust property of the client coming into the possession of the lawyer
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Q. May a counsel unilaterally retain or appropriate funds of his client as his attorneys lien? A: No. A counsel has no right to retain or appropriate unilaterally as lawyers lien any amount belonging to his client which may come into his possession. (Cabigao v. Rodrigo, August 9,1932)
Note: While this rule provides that the lawyer has the right to retain the funds of his client as may be necessary to satisfy his lawful fees and disbursements known as attorneys lien and his lien to the same extent on all judgments and executions he has secured for his client called charging lien, he is still dutybound to render an accounting of his clients funds and property which may come into his possession in the course of his professional employment In the application of attorneys lien, a lawyer shall give notice to his client otherwise, the same might be construed as misappropriation which may subject him to disciplinary action. (Antiquiera, 2007)
the Canons of Professional Ethics, in force at the time material to this case, provides that the lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client. Money of the client or collected for the client or other trust property coming into the possession of the lawyer should be reported and accounted for promptly and should not under any circumstances be commingled with his own or be used by him. In this case, Meneses should have made an accounting with his client of the amount he received, deducted the balance of the attorneys fees due him, and turned over the rest of the amount to his client. As the Solicitor General observed, if Meneses was mindful of his ethics, he should at least have waited until the judgment debtor in Civil Case No. 82 had made further payments on the amount adjudged against them... By placing his personal interest above his clients cause, respondent clearly breached the trust reposed upon him. (Marquez v. Meneses, Adm. Case No. 675, December 17, 1999) Q: Fernandez engaged the services of Atty. Cabrera II to handle the cases of her associates in Baguio City. After taking hold of the records of the cases that Fernandez entrusted to him and after getting initially paid for the services he would render, Atty. Cabrera II suddenly disappeared and could no longer be located in his given address or in the addresses that Fernandez gathered. Did Atty. Cabrera II violate the Code of Professional Responsibility when he accepted the records and money of the complainant and thereafter failed to render his services? A: Yes. Acceptance of money from a client establishes an attorney-client relationship and gives rise to the duty of fidelity to the client's cause. The canons of professional responsibility require that once an attorney agrees to handle a case, he should undertake the task with zeal, care, and utmost devotion. Atty. Cabrera's action projects his appalling indifference to his client's cause and a brazen disregard of his duties as a lawyer. Not only did he fail to render service of any kind, he also absconded with the records of the cases with which he was entrusted. Then to top it all, he kept the money complainant paid to him. Such conduct is unbecoming of a member of the bar, for a lawyer's professional and personal conduct
Q. Marquez retained the professional service of Meneses to prosecute a claim against Ruth Igdanes and Delfin Igdanes. The oral agreement was that Marquez would pay a fee of P100.00 to Meneses, whether the case was won or lost. Thereafter, Marquez advanced from time to time to Meneses various sums as fees, which totalled P75.00. When decision was rendered by the court in favor of the Marquez, Igdanes was ordered to pay Marquez the claimed amount with legal interest from the filing of the complaint until fully paid, and P75.00 as attorneys fees. Marquezs brother informed her that the sheriff informed him that Meneses respondent had gotten all of the P75.00 as his fees. Marquez wrote to Meneses twice asking him to send her P50.00 and to keep P25.00 for himself, but Meneses refused to give her the P50.00 she was asking and contended that that was their agreement. Marquezs contention, in brief, is that she had been overcharged by Meneses for as the agreed fee was P100.00, win or lose, and she had already paid P75.00 to Meneses, the latter simply had the right, at most, to keep P25.00 out of the P75.00 he had gotten from the sheriff. Should Atty. Meneses be held liable for not giving the money to his client? A: Yes. It is well-settled that money collected by a lawyer in pursuance of a judgment in favor of his client is money held in trust and must be immediately turned over to the latter.Canon 11 of
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must at all times be kept beyond reproach and above suspicion. The duty of a lawyer is to uphold the integrity and dignity of the legal profession at all times. This can only be done by faithfully performing the lawyer's duties to society, to the bar, to the courts and to his clients. (Fernandez v. Atty. Cabrera II, A.C. No. 5623, Dec. 11, 2003) d. Borrowing or Lending Rule 16.04, Canon 16, CPR - A lawyer shall not borrow money from his client unless the client's interest are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client. Q: Is a lawyer allowed to borrow money from his client? A: GR: No. XPN: Unless the clients interests are fully protected by the nature of the case or by independent advice.
Note: While the lawyer may borrow money from his client, where the clients interests are fully protected by the nature of the case he is handling for the client, or by independent advice from another lawyer, he should not abuse the clients confidence by delaying payment. (Alindogan v. Geron, G.R. Admin. Case No. 221, May 21, 1958).
and 1 million in check and out of the 2 million, Atty. Lozada took 1 million as her commission without Frias consent. When Dra. San Diego backed out from the sale, Frias tried to recover from Atty. Lozada the title to the property and other documents but Atty. Lozada started avoiding her. Dra. San Diego filed a case against Frias to return the 3 million she paid plus interest. Frias claimed that her failure to return the money was because of Atty. Lozadas refusal to give back the 1 million she took as commission. A case was filed by Frias against Atty. Lozada but despite the favourable decision, respondent refused to return the money. Atty. Lozada claimed that since she did not have enough money, Frias requested her to sell or mortgage the property and offered her a loan, commission and attorneys fees on the basis of the selling price. He denied that Frias previously demanded the return of 1million until the civil case against her was instituted in which she expressed her willingness to pay the 900,000 plus agreed interest. Did Atty. Lozada committed a violation of the Code of Professional Responsibility in asking for a loan from her client? A: Yes. Her act of borrowing money from a client was a violation of Canon 16.04 of the Code of Professional Responsibility. A lawyers act of asking a client for a loan, as what respondent did, is very unethical. It comes within those acts considered as abuse of clients confidence. The canon presumes that the client is disadvantaged by the lawyers ability to use all the legal manoeuverings to renege on her obligation. (Frias v. Lozada, A.C. NO. 6656, December 13,2005)
Note: The principle behind Rule 16.04 is to prevent the lawyer from taking advantage of his influence over the client or to avoid acquiring a financial interest in the outcome of the case. Not prohibited: advances for necessary expenses.
Q: Is a lawyer allowed to lend money from his client? A: GR: No. XPN: when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client.
Note: Prohibition from lending is intended to assure the lawyers independent professional judgment, for if the lawyer acquires a financial interest in the outcome of the case the free exercise of his judgment may be adversely affected. (Agpalo, 2004; Comment of IBP Committee that drafted the Code, p.90)
4. FIDELITY TO CLIENTS CAUSE CANON 17, CPR - A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM. (2007, 2008 Bar Questions)
Q: Atty Lozada was the retained counsel and legal adviser of Frias to which all documents and titles of properties of the latter were entrusted to. Atty Lozada persuaded Frias to sell her house, the former acting as broker since she was in need of money. Dra. San Diego, the prospective buyer then handed 2 million in cash
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Note: Loyalty to a client does not require a lawyer to adopt a clients political, social and economic views, or refrain from a political activity that maybe in opposition to a clients position.
Q: When does the lawyers duty of fidelity to his clients cause commence? A: Lawyers duty of fidelity commences from receipt of his retainer until his effective release from the case or the final disposition of the whole subject matter of the litigation. During that period, he is expected to take such reasonable steps and such ordinary care as his clients interest may require. (CPR Annotated, PhilJA)
Note: Acceptance of money from a client establishes an attorney-client relationship and gives rise to the duty of fidelity to the clients cause. Every case accepted by a lawyer deserves full attention, diligence, skill and competence, regardless of importance. (Rollon v. Atty. Naraval, A.C. No. 6424, Mar. 4, 2005)
not extend to those made in contemplation of a crime or perpetration of a fraud. If the unlawful purpose is avowed, as in this case, the complainant's alleged intention to bribe government officials in relation to his case, the communication is not covered by the privilege as the client does not consult the lawyer professionally. It is not within the profession of a lawyer to advise a client as to how he may commit a crime as a lawyer is not a gun for hire. Thus, the attorney-client privilege does not attach, there being no professional employment in the strict sense. (Genato v. Atty. Silapan, A.C. No. 4078, July 14, 2003) Q: Schulz, a German national filed a complaint for disbarment against Atty. Flores. He alleged that he engaged the services of Atty. Flores for the purpose of filing a complaint against Ong for revocation of contract and damages. Atty. Flores advised him that there was no need to refer the complaint to barangay conciliation. Three months later, Atty. Flores instructed him to file his complaint with the Lupon Tagapamayapa. Ong refused to appear at the conciliation hearings, arguing that the Lupon had no jurisdiction over his person because he was a resident of another barangay. Thus, Schulz brought the complaint before the barangay in which Ong is a resident. By that time, however, Schulz learned that Ong had already filed a case for specific performance against him. Schulz argued that Atty. Flores inordinate delay in acting on his case resulted in his being defendant rather than a complainant against Ong. Is the actuation of Atty. Flores in causing the delay of bringing the dispute under the system of barangay conciliation reprehensible as to warrant the suspension of Atty. Flores? A: Yes. Atty. Flores committed a serious transgression when he failed to exert his utmost learning and ability to give entire devotion to his client's cause. His client had relied upon him to file the complaint with dispatch so that he would not be pre-empted by the adverse party. But he failed him. As a consequence of Att. Flores' indolence, his client was haled to court as a partydefendant. It therefore behoves this Court to wield its corrective hand on this inexcusable infraction which caused undeserved and needless prejudice to his client's interest, adversely affected the confidence of the community in the legal profession and eroded the public's trust in the judicial system. As an attorney, Atty. Flores is sworn to do his level best and to observe full fidelity to the court and his clients. (Schulz v. Atty. Flores, A.C. No. 4219, Dec. 8, 2003)
Q: What are the exceptions to the general rule that the obligation to keep secrets covers only lawful purposes? A: 1. 2. 3. 4. Announcements of a clients intention to commit a crime; When the client jumped bail and the lawyer knows his whereabouts; When the client is living somewhere under an assumed name; and The communication involves the commission of future fraud or crime.
Q: Genato filed a disbarment case against Atty. Silapan for allegedly breaking their confidential lawyer-client relationship by disclosing confidential information against him. In his answer, Atty. Silapan contended that he used the confidential statements in the course of judicial proceedings in order to defend his case and to discredit Genatos credibility by establishing his criminal propensity to commit fraud, tell lies and violate the laws. Is Atty. Silapan guilty of breach of trust and confidence by imputing to Genato illegal practices and disclosing Genatos alleged intention to bribe government officials in connection with a pending case? A: No. It must be stressed that the privilege against disclosure of confidential communications or information is limited only to communications which are legitimately and properly within the scope of a lawful employment of a lawyer. It does
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Q: Matias Lagramada residing with his uncle, Apolonio Lagramada, was invited by the latter to accompany him to the police station, supposedly to pick up a refrigerator they were to repair. Upon their arrival there, Matias was immediately taken in and locked behind bars. Two informations were filed against him only 10 months after the first day of his incarceration. With the assistance of counsel, Matias pleaded not guilty when arraigned, without raising the invalidity of the arrest. Was the case properly handled? A: No. Lawyers owe fidelity to the cause of their clients and must be mindful of the trust and confidence reposed in them. Matias counsel, in the spirit of safeguarding his clients rights, should have taken the necessary steps to correct the situation. However, he allowed his client to enter a plea during the latters arraignment without raising the invalidity of arrest. Thus, the former effectively waived his clients right to question its validity. Defense counsels are expected to spare no effort to save the accused from unrighteous incarcerations. Matias counsel should have not only perfunctorily represented his client during the pendency of the case, but should have kept in mind his duty to render effective legal assistance and true service by protecting the latters rights at all times. (People v. Lagramada, G.R. Nos. 146357 & 148170, Aug. 29, 2002) 5. COMPETENCE AND DILIGENCE CANON 18, CPR A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE (1998, 2001, 2002, 2005, 2008 Bar Questions).
Note: Diligence is the attention and care required of a person in a given situation and is the opposite of negligence. It is axiomatic in the practice of law that the price of success is eternal diligence to the cause of the client. (Edquibal v. Ferrer, A.C. No. 5687, Feb. 3, 2005) Note: The Court again reminded lawyers to handle only as many cases as they can efficiently handle. For it is not enough that a practitioner is qualified to handle a legal matter, he is also required to prepare adequately and give the appropriate attention to his legal work. A lawyer owes entire devotion to the cause of his client, warmth and zeal in the defense and maintenance of his rights, and the exertion of his learning and utmost ability that nothing can be taken or withheld from his client except in accordance with law. (Miwa v. Atty. Medina, A.C. No. 5854, Sept. 30, 2003)
Q: In a criminal case for rape with homicide, the accused pleaded guilty. However, the three PAO lawyers assigned as counsel de oficio did not advise their client of the consequences of pleading guilty; one PAO lawyer left the courtroom during trial and thus was not able to cross-examine the prosecution witnesses. The other postponed the presentation of evidence for the defense, and when he appeared, he said he would rely solely on the plea of guilty, in the belief that it would lower the penalty to reclusion perpetua. Should the three PAO lawyers be disciplined? A: Yes. All three (3) of them displayed manifest disinterest on the plight of their client. They lacked vigor and dedication to their work. Canon 18 of the Code of Professional Responsibility requires every lawyer to serve his client with utmost dedication, competence and diligence. He must not neglect a legal matter entrusted to him, and his negligence in this regard renders him administratively liable. Obviously, in the instant case, the defense lawyers did not protect, much less uphold, the fundamental rights of the accused. Instead, they haphazardly performed their function as counsel de oficio to the detriment and prejudice of the accused Sevilleno, however guilty he might have been found to be after trial. (People v. Sevilleno, G.R. No. 129058, Mar. 29, 1999) a. Collaborating Counsel Rule 18.01, Canon 18, CPR A lawyer shall not undertake a legal service which he knows or should know that he is not qualified to render. However, he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is competent on the matter.
Note: The lawyers acceptance is an implied representation that he possesses the academic learning, skill and ability to handle the case.
Q: Who is a Collaborating Counsel? A: Is one who is subsequently engaged to assist a lawyer already handling a particular case for a client. (Pineda, 2009)
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Note: The handling lawyer cannot just take another counsel without the consent of the client. The new lawyer on the other hand cannot just enter his appearance as collaborating counsel without the conformity of the first counsel.(Ibid.) The same diligence required of the first counsel is required of the collaborating counsel. The negligence of the latter is also binding on the client. (Sublay v. NLRC, G.R. No. 130104. January 31, 2000; Pineda 2009) knowledge and consent. (Abay v. Atty. Montesino, A.C. No. 5718, Dec. 4, 2003) A lawyer has no authority to waive clients right to appeal. His failure to perfect an appeal within the prescribed period constitutes negligence and malpractice. (Reontoy v. Ibadlit, A.C. CBD No. 190, January 28, 1998)
b. Negligence Rule 18.03, Canon 18, CPR - A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. (1998, 2002 Bar Questions) Q: What degree of diligence or vigilance is expected from a lawyer? A: The legal profession demands of a lawyer that degree of vigilance and attention of a good father of a family (Lapena, 2009) or ordinary pater familias (Pineda, 2009). He is not required to exercise extraordinary diligence. (Edquibal v. Ferrer, Jr., A.C. No. 5687, February 03, 2005)
Note: The attorneys duty to safeguard the clients interests commences from his retainer until his effective release from the case or the final disposition of the whole subject matter of the litigation. During the period, he is expected to take such reasonable steps and such ordinary care as his clients interests may require. A lawyer who received money to handle a clients case but rendered no service at all shall be subject to disciplinary measure. (Dalisay v. Atty. Mauricio, A.C. No. 5655, April 2005)
Q: As an incident in the main case, Velasquez appointed his counsel as attorney-in-fact to represent him at the pre-trial. Counsel failed to appear, hence Velasquez was declared in default. The order of default was received by counsel but no steps were taken to have it lifted or set aside. Decide. A: It is binding on Velasquez who is himself guilty of negligence when, after executing the special power of attorney in favor of his lawyer, he left for abroad and apparently paid no further attention to his case until he received the decision. There is therefore no fraud, accident, mistake or excusable negligence which will warrant a lifting of the order of default. As a general rule, a client is bound by the mistakes of his counsel; more so by the result of his own negligence. (Velasquez v. CA, G.R. No. 124049, June 30, 1999) Rule 18.02, Canon 18, CPR - A lawyer shall not handle any legal matter without adequate preparation.
Note: A lawyer should prepare his pleadings with great care and circumspection. He should refrain from using abrasive and offensive language, for it merely weakens rather than strengthens the force of legal reasoning and detracts from its persuasiveness. In preparing a complaint for damages, counsel for plaintiff should allege and state the specific amounts claimed not only in the body of the complaint but also in the prayer, so that the proper docket fees can be assessed and paid. (Fernandez v. Atty. Novero, A.C. No. 5394, Dec. 2, 2002) Note: The counsel must constantly keep in mind that his action or omissions, even malfeasance and nonfeasance would be binding to his client. Verily, a lawyer owes to the client the exercise of utmost prudence and responsibility in representation (Fernandez v. Atty. Novero, A.C. No. 5394, December 2002).
Q: When can it be said that a lawyer has been negligent? A: What amounts to carelessness or negligence in a lawyers discharge of his duty to client is incapable of exact formulation. It will depend upon the circumstances of the case.
Note: Failure to appeal to CA despite instructions by the client to do so constitutes inexcusable negligence on the part of the counsel. (Abiero v. Juanino, A.C. No. 5302, Feb.18, 2005) Note: Even if a lawyer was "honestly and sincerely" protecting the interests of his client, the former still had no right to waive the appeal without the latter's
c. Duty to Appraise the Client Rule 18.04, Canon 18, CPR - A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the clients request for information.
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A lawyer should notify his client of the adverse decision while within the period to appeal to enable the client to decide whether to seek an appellate review. He should communicate with him concerning the withdrawal of appeal with all its adverse consequences. The client is entitled to the fullest disclosure of the mode or manner by which his interest is defended or why certain steps are taken or omitted.
the same to his principal in the course of professional dealings.

Note: The doctrine applies regardless of whether or not the lawyer actually communicated to the client what he learned in his professional capacity, the attorney and his client being one judicial person.
Q: Spouses Garcia engaged the services of Atty. Rolando Bala to appeal to the CA the adverse Decision of the Department of Agrarian Relations Adjudication Board (DARAB). Instead, he erroneously filed a Notice of Appeal. During one instance when the spouses had called on him to ask for a copy of the supposed appeal, Atty. Bala uttered unsavory words against them. Because of his error, the prescribed period for filing the petition lapsed, to the prejudice of his clients. Did Atty. Bala violate any ethical rules? A: Yes. Rule 18.04 states that a "lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client's request for information." Accordingly, spouses had the right to be updated on the developments and status of the case for which they had engaged the services of Atty. Bala. But he apparently denied them that right. Having become aware of the wrong remedy he had erroneously taken, he purposely evaded his clients, refused to update them on the appeal, and misled them as to his whereabouts. Moreover, he uttered invectives at them when they visited him for an update on the case. (Spouses Garcia v. Bala, A.C. No. 5039, Nov. 25, 2005)
Note: The lawyer is obliged to respond within a reasonable time to a client's request for information. A client is entitled to the fullest disclosure of the mode or manner by which that client's interest is defended or why certain steps are taken or omitted. A lawyer who repeatedly fails to answer the inquiries or communications of a client violates the rules of professional courtesy and neglects the client's interests. (Villariasa-Reisenbeck v. Abarrientos, A.C. No. 6238, Nov. 4, 2004)
Q: Are the mistakes or negligence of a lawyer binding upon the client? A: GR: Client is bound by attorneys conduct, negligence and mistake in handling a case or in management of litigation and in procedural technique, and he cannot complain that the result might have been different had his lawyer proceeded differently. XPN: LIPIG 1. Lack of acquaintance with technical aspect of procedure; 2. When adherence thereto results in outright deprivation of clients liberty or property or where Interest of justice so requires; 3. Where error by counsel is Purely technical which does not substantially affect clients cause; 4. Ignorance, incompetence, or inexperience of lawyer is so great and error so serious that client, who has a good cause, is prejudiced and denied a day in court; 5. Gross negligence of lawyer. (1998, 2000, 2002 Bar Questions)
Note: If by reason of the lawyers negligence, actual loss has been caused to his client, the latter has a cause of action against him for damages. However, for the lawyer to be held liable, his failure to exercise reasonable care, skill and diligence must be proximate cause of the loss.
Q: What are the exceptions to the rule that notice to counsel is notice to client? A: 1. 2. 3. 4. Strict application might foster dangerous collusion to the detriment of justice; Service of notice upon party instead of upon his attorney is ordered by the court; Notice of pre-trial is required to be served upon parties and their respective lawyers; In appeal from the lower court to the RTC, upon docketing of appeal.
Q: Explain the doctrine of imputed knowledge. A: The knowledge acquired by an attorney during the time that hes acting within the scope of his authority is imputed to the client. It is based on the assumption that an attorney, who has notice of matter affecting his client, has communicated
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Q: What is a plea of guilty? A: It is an admission by the accused of his guilt of a crime as charged in the information and of the truth of the facts alleged, including the qualifying and aggravating circumstances. Q: What is the duty of the defense counsel when his client desires to enter a plea of guilty? A: F-CEPA 1. Fully acquaint himself with the records and surrounding circumstances of the case; 2. Confer with the accused and obtain from him his account of what had happened; 3. Thoroughly Explain to him the import of a guilty plea and the inevitable conviction that will follow; 4. See to it that the prescribed Procedure which experience has shown to be necessary to the administration of justice is strictly followed and disclosed in the court records; and 5. Advise him of his constitutional rights.
Note: A lawyer should endeavor to seek instruction from his client on any substantial matter concerning the litigation, which may require decision on the part of the client, such as whether to compromise the case or to appeal an unfavorable judgment. He should give his client sound advice on any such and similar matters and comply with the clients lawful instructions relative thereto. He should resist and should never follow any unlawful instruction of his client.
2.
3. 4.
Will possess the requisite degree of Academic learning, skill and ability in the practice of his profession; Will take steps as will adequately Safeguard his clients interests; and Will Exert his best judgment in the prosecution or defense of the litigation entrusted to him. (Islas v. Platon, G.R. No. L-23183, Dec. 29, 1924)
Q: Is a lawyer required to show his authority to appear for or represent a client? A: No. An attorney is presumed to be properly authorized to represent any cause in which he appears in all stages of the litigation and no written authority is required to authorize him to appear. A mere denial by a party that he has authorized an attorney to appear for him, in the absence of a compelling reason, is insufficient to overcome the presumption especially when the denial comes after the rendition of an adverse judgment. Q: May a practicing lawyer be required to produce or prove his authority to appear in court? A: Yes. The presiding judge may, on motion of either party and on reasonable grounds therefore being shown, require an attorney who assumes the right to appear in a case to produce or prove the authority under which he appears, and to disclose, whenever pertinent to any issue, the name of the person who employed him, and may thereupon make such order as justice requires. (Sec. 21, Rule 138, RRC) Q: What are the effects of an unauthorized appearance? A: 1. The party represented is not bound by attorneys appearance in the case neither by the judgment rendered therein; Court does not acquire jurisdiction over the person of the party represented; The adverse party who has been forced to litigate as a defendant by the unauthorized action on the part of the attorney for the plaintiff may, on that ground, move for the dismissal of the complaint; and If unauthorized appearance is willful, attorney may be cited for contempt as an officer of the court who has misbehaved in his official transactions, and he may be disciplined for professional misconduct.
6. REPRESENTATION WITH SEAL WITHIN LEGAL BOUNDS CANON 19, CPR - A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE LAW. (1994, 1997, 2001, 2003 Bar Questions) Q: What does a lawyer represent to a client when he accepts a professional employment of his services? A: When a lawyer accepts a case, whether for a fee or not, his acceptance is an implied representation that he: CASE 1. Will exercise reasonable and ordinary Care and diligence in the pursuit or defense of the case;
2. 3.
4.
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Q: May an attorney voluntarily appear for a person without being employed? A: No. An attorney may not appear for a person until he is in fact employed by, or retained for such person. An attorney willfully appearing in court for a person without being employed, unless by leave of court, may be punished for contempt as an officer of the court, who has misbehaved in his official transactions. (Sec. 26, Rule 138) Q: How can an unauthorized appearance be ratified? A: 1. Express Categorized assertion by client that he has authorized a lawyer or that he confirms his authorization to represent him in the case. Implied Where party with knowledge of fact that a lawyer has been representing him in a case, accepts benefits of representation or fails to promptly repudiate the assumed authority. 2. A: 1. As to matters of procedure- it is the client who yields to the lawyer and not the lawyer yielding to the client. (Lapena, 2009)
Rationale: The basis of this rule is that the lawyer is better trained and skilled in law. Note: Cause of action, claim or demand, and subject of litigation are within clients control. Proceedings to enforce the remedy are within the exclusive control of the attorney.
As to subject matter- the client is in control.
Q: What is a compromise? A: It is a contract whereby the parties, by making reciprocal concessions, avoid litigation or put an end to one already commenced. (Art. 2028, NCC) Q: State the rule with respect to the authority of an attorney to compromise his clients case. A: GR: The attorney has no authority to compromise his clients case. This is so because the client, even if represented by counsel, retains exclusive control over the subject matter of the litigation. The client can, of course, authorize his lawyer to compromise his case, and the settlement made by the lawyer will bind his client. XPN: When the lawyer is confronted with an emergency where prompt and urgent action is necessary to protect the interest of his client and there is no opportunity for consultation with the latter. a. Duty to Restrain Client from Impropriety Rule 19.01, Canon 9, CPR A lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding. (1997 Bar Question)
Note: Under this rule, a lawyer should not file or threaten to file any unfounded or baseless criminal case or cases against the adversaries of his client
2.
Q: What are the requisites of implied ratification by silence? A: 1. The party represented by the attorney is of age or competent or if he suffers from any disability, he has a duly appointed guardian or legal representative; The party or his guardian, as the case may be, is aware of the attorneys representation; and He fails to promptly repudiate assumed authority.
2.
3.
Q: What is the extent of a lawyers authority in the conduct of litigation? A: A lawyer has authority to bind the client in all matters of ordinary judicial procedure. The cause of action, the claim or demand sued upon and the subject matter of the litigation are within the exclusive control of the client. A client may waive, surrender, dismiss, or compromise any of his rights involved in litigation in favor of the other party even without or against the consent of his attorney. Q: Who has control over the proceedings?
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designed to secure a leverage to compel the adversaries to yield or withdraw their own cases against the lawyers client. (Pena v. Atty. Aparicio, A.C. No. 7298, June 25, 2007) Note: Rule 19.01 of the CPR obligates a lawyer, in defending his client, to employ only such means as are consistent with truth and honor. He should not prosecute patently frivolous and meritless appeals or institute clearly groundless actions. The act of a lawyer in preventing the execution of the judgment against his clients shows that he actually committed what the above rule expressly prohibits. (Que v. Revilla, A.C. No. 7054, Dec. 4, 2009)
Rule 19.02, Canon 19, CPR A lawyer who has received information that his client has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he shall terminate the relationship with such client in accordance with the Rules of Court. (2001 Bar Question) The lawyers duty to his client does not mean freedom to set up false or fraudulent claims especially with respect to provisions of law or administrative rules and that while lawyers are bound to exert utmost legal skill in prosecuting their clients cause or defending it, their duty, first and foremost, is to the administration of justice. (CPR Annotated, PhilJA)
Note: It is an unethical tactic for a lawyer to offer monetary rewards to anyone who could give him information against a party so that he could have leverage against all actions involving such party. (CPR Annotated, PhilJA) Note: A lawyer should use his best efforts to restrain and to prevent his client from doing those things which he himself ought not to do, particularly with reference to the conduct toward the court, judicial officer, witness and suitor and if the client persists in such wrong doing, the lawyer should terminate their relation. (Surigao Mineral Reservation Board v. Cloribel, G.R. No. L-27072, Jan. 9, 1970)
Q: Alex Ong received a demand-letter from Atty. Elpidio Unto, in the latter's capacity as legal counsel of one Nemesia Gargania. The letter is in connection with the claim of support of Nemesia Garganian against him for her son. It was further stated therein that failure to comply with the demand will result to the filing of proper action in court. The real father of Ms. Garganian's son was Alex' brother and he merely assumed his brother's obligation to appease Ms. Garganian who was threatening to sue them. Alex then did not comply with the demands against him. Consequently, Atty. Unto filed a complaint for alleged violation of the Retail Trade Nationalization Law and the Anti-Dummy Law. In addition, he commenced administrative cases against Alex before the Bureau of Domestic Trade, the Commission on Immigration and Deportation, and the Office of the Solicitor General. These cases were subsequently denied due course and dismissed. This prompted Alex to file a case for disbarment. Did Atty. Unto fall short of professional standards? A: Yes. He tried to coerce his client to comply with his letter-demand by threatening to file various charges against the latter. When Alex did not heed Atty. Untos warning, he made good his threat and filed a string of criminal and administrative cases against him. His action is malicious as the cases he instituted against the complainant did not have any bearing or connection to the cause of his client, Ms. Garganian. Clearly, Atty. Unto violated the proscription in Rule 19.01. His behavior is inexcusable. (Ong v. Unto, A.C. No. 2417, Feb. 6, 2002) b. Duty of Lawyer in Case of Knowledge of Clients Fraud
c. Authority of a Lawyer Rule 19.03, Canon 19, CPR A lawyer shall not allow his client to dictate the procedure in handling the case. The Code enjoins a lawyer to employ only fair and honest means to attain the lawful objectives of his client and warns him not to allow his client to dictate the procedure in handling the case. In short, a lawyer is not a gun for hire. (Millare v. Atty. Montero, A.C. No. 3283, July 13, 1995)
Note: The lawyer, and not the client, is assumed to have knowledge of laws and rules of procedure. The procedure in handling a case should therefore fall within the lawyers control and supervision.
Q: Is the lawyer confined entirely on the information his client gave? A: No. The lawyer cannot entirely depend on the information his client gave or the time his client
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wished to give. The lawyer should take more control over handling the case. Where the client is based overseas, the lawyer should with more reason, have moved to secure all the legal means available to him either to continue representing his client effectively or to make the necessary manifestation in court, with the clients conformity, that he was withdrawing as counsel of record. (CPR Annotated, PhilJA)
Note: Counsel's failure to file formal offer of exhibits constitutes inexcusable negligence as it led to the dismissal of the case. To compound his inefficiency, counsel filed a motion for reconsideration outside the reglementary period. His attempts to evade responsibility by shifting the blame on his client are apparent. He refers to the alleged obnoxious attitude of his client in trying to manipulate the manner in which he was handling the case as the main reason for his failure to formally offer his exhibits. But he should bear in mind that while a lawyer owes utmost zeal and devotion to the interest of his client, he also has the responsibility of employing only fair and honest means to attain the lawful objectives of his client and he should not allow the latter to dictate the procedure in handling the case. (Fernandez v. Novero, A.C. No. 5394, Dec.2, 2002) Note: If the defendant seeks other reliefs, the appearance, even if qualified by the word special, is equivalent to a general appearance. Generally, appointment of counsel confers a general authority. Thus, acts which are necessary or incidental to the management of the suit or for the accomplishment of a specific purpose are entrusted to him. And the client has a right to expect that his/her counsel will protect his/her interest.
7. ATTORNEYS FEES (1990, 1991, 1992, 1994, 1995, 1997, 1998, 2005, 2006, 2007 Bar Question) CANON 20,CPR - A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE FEES (1997,1998,2003 Bar Question).
Q: Who are entitled to attorneys fees? A: GR: Only lawyers are entitled to attorneys fees. The same cannot be shared with a nonlawyer. It is unethical. XPN: A lawyer may divide a fee for legal services with persons not licensed to practice law: CPR 1. A lawyer undertakes to Complete the unfinished legal business of a deceased lawyer; There is a Pre-existing agreement with a partner or associate that, upon the latters death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement; A lawyer or law firm includes nonlawyer employees in Retirement plan, even if the plan is based, in whole or in part, on a profit-sharing agreement. (Rule 9.02, CPR)
Q: What is appearance? A: It is the coming into court as a party either as a plaintiff or as a defendant and asking relief therefrom. Q: What are the kinds of appearance? A: 1. General appearance When a party comes to court either as plaintiff or defendant and seeks general reliefs from the court for satisfaction of his claims or counterclaims respectively. Special appearance When a defendant appears in court solely for the purpose of objecting to the jurisdiction of the court over his person.
2.
2.
3.
Note: By virtue of Sec. 20, Rule 14 of the 1997 Rules of Civil Procedure, there is no more distinction between general appearance and special appearance, in the sense that a defendant may file a motion to dismiss not only on the ground of lack of jurisdiction over his person but also on some other grounds without waiving the jurisdiction of the court over his person.
Note: Entitlement to lawyers fees is presumed. (Funa, 2009) Unless otherwise expressly stipulated, rendition of professional services by a lawyer is for a fee or compensation and is not gratuitous. (Research and Services Realty, Inc. v. CA, G.R. No. 124074, January 27,1997)
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Rule 20.01, Canon 20, CPR - A lawyer shall be guided by the following factors in determining his fees: a. b. c. d. e. The time spent and the extent of the service rendered or required; the novelty and difficulty of the questions involved; The importance of the subject matter; The skill demanded; The probability of losing other employment as a result of acceptance of the proffered case; The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs; The amount involved in the controversy and the benefits resulting to the client from the service; The contingency or certainty of compensation; The character of the employment, whether occasional or established; and The professional standing of the lawyer. Q: What are the requisites for the right to attorneys fees to accrue? A: 1. 2. Existence of attorney-client relationship; and Rendition by the lawyer of services to the client.
Note: A pauper, while exempted from payment of legal fees is not exempted from payment of attorneys fees.(Cristobal v. Employees Compensation Commission, G.R. No. L-49280, February26, 1981)
f.
Q: What are the factors in determining the attorneys fees? A: In determining what is fair and reasonable, a lawyer shall be guided by the following factors: STIP-SNACCC 1. Skill demanded; 2. Time spent and the extent of the services rendered or required; 3. Importance of the subject matter; 4. Probability of losing other employment as a result of acceptance of the proffered case; 5. Professional Standing of the lawyer; 6. Novelty and difficulty of the questions involved; 7. Amount involved in the controversy and the benefits resulting to the client from the services; 8. Customary Charges for similar services and the schedule of fees of the IBP chapter to which he belongs; 9. Contingency or certainty of compensation; and 10. Character of the employment, whether occasional or established. (Rule 20.01) (1994 Bar Question)
Note: Imposition of interest in the payment of attorneys fees is not justified.(Funa, 2009) Contracts for attorneys services in this jurisdiction stands upon an entirely different footing from other contract for the payment of compensation for any other services. (Mambulao Lumber Co. v. Philippine National Bank, 130 Phil. 366) Note: A lawyer is entitled to recover litigation expenses incurred in collecting attorneys fees.(Funa, 2009)
g.
h. i.
j.
Note: Generally, the amount of attorneys fees due is that stipulated in the retainer agreement which is conclusive as to the amount of lawyers compensation (Funa, 2009) unless the stipulated amount in the written contract is found by the court to be unconscionable or unreasonable (Sec. 24, Rule 138, RRC). In the absence thereof, the amount of attorneys fees is fixed on the basis of quantum meruit. (Sesbreno v. Court of Appeals, G.R. No. 117438, June 8,1995; Funa, 2009)
Q: What are the kinds of payment which may be stipulated upon? A: 1. Fixed or absolute fee that which is payable regardless of the result of the case. a. A fixed fee payable per appearance b. A fixed fee computed upon the number of hours spent c. A fixed fee based on piece work d. Combination of any of the above Contingent fee a fee that is conditioned on the securing of a favorable judgment and recovery of money or property and the amount of which may be on a percentage basis. (1990, 2000, 2001, 2002, 2006, 2008 Bar Questions)
2.
Q: Are the courts bound by the opinions of attorneys as expert witnesses as to the proper compensation of the lawyer?
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A: No. No court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation, and may disregard such testimony and base its conclusion on its professional knowledge. A written contract for services shall control the amount to be paid therefor, unless found by the court to be unconscionable or unreasonable. (Sec. 24, Rule 138, RRC) Q: In the absence of a fee arrangement, how would the services of an attorney be compensated? A: In the absence of a fee arrangement, the lawyer is paid on a quantum meruit basis. The factors to be taken into consideration in determining the amount are: TINS 1. Time spent and the services rendered or required A lawyer is justified in fixing higher fees when the case is so complicated and requires more time and effort in fixing it. Importance of subject matter The more important the subject matter or the bigger the value of the interest of the property in litigation, the higher is the attorneys fees. Novelty and difficulty of questions involved When the questions in a case are novel and difficult, greater effort, deeper study and research are bound to burn the lawyers time and stamina considering that there are no local precedents to rely upon. Skill demanded of a lawyer The totality of the lawyers experience provides him skill and competence admired in lawyers. 3. The contract for attorneys fees is void due to purely formal matters or defects of execution; The counsel, for justifiable cause, was not able to finish the case to its conclusion; Lawyer and client disregard the contract for attorneys fees; and The client dismissed his counsel before the termination of the case.
4. 5. 6.
Note: Length of practice is not a safe criterion of professional ability.
Q: A client refuses to pay Atty. A his contracted attorney's fees on the ground that counsel did not wish to intervene in the process of effecting a fair settlement of the case. Decide. A: Rule 1.04 of the Code of Professional Responsibility provides that "a lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement". If a lawyer should refuse to intervene in a settlement proceeding, his entitlement to his attorney's fees may be affected. However, if he has already rendered some valuable services to the client, he must be paid his attorney's fees on the basis of quantum meruit, even if it is assumed that he is dismissed. (2001 Bar Question) Q: What are the instances when counsel cannot recover full amount despite written contract for attorneys fees? A: 1. When the services called for were not performed as when the lawyer withdrew before the case was finished, he will be allowed only reasonable fees; When there is a justified dismissal of the attorney, the contract will be nullified and payment will be on the basis of quantum meruit only. A contrary stipulation will be invalid; When the stipulated attorneys fees are unconscionable, when it is disproportionate as compared to the value of services rendered and is revolting to human conscience; When the stipulated attorneys fees are in excess of what is expressly provided by law; When the lawyer is guilty of fraud or bad faith toward his client in the matter of his employment; When the counsels services are worthless because of his negligence;
2.
3.
4.
Q: What does quantum meruit mean? 2. A: Quantum meruit means "as much as he deserves", and is used as the basis for determining the lawyer's professional fees in the absence of a contract, but recoverable by him from his client. Q: When is the measure of quantum meruit resorted to? (2007 Bar Question) A: Quantum meruit is resorted to when: 1. There is no express contract for payment of attorneys fees agreed upon between the lawyer and the client; Although there is a formal contract for attorneys fees, the stipulated fees are found unconscionable or unreasonable by the court; 4.
3.
5.
2.
6.
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7. 8. When contract is contrary to law, morals or public policy; and Serving adverse interest unless the lawyer proves that it was with the consent of both parties. (2006 Bar Question)
Note: The basis for this compensation is the fact of his employment by and his agreement with the client.(Ibid.)
2.
Q: Courts may interfere and reduce contractually agreed upon attorneys fees when the same is unconscionable or excessive. What is the rationale behind this authority? A: 1. Indubitably intertwined with the lawyers duty to charge only reasonable fees is the power of the court to reduce the amount of attorneys fees if the same is excessive and unconscionable. (Roxas v. De Zuzuarregui, Jr., G. R. No. 152072, Jan. 31, 2006); A lawyer is primarily an officer of the court hence fees should be subject to judicial control; Sound public policy demands that courts disregard stipulations for attorneys fees when they appear to be a source of speculative profit at the expense of the debtor or mortgagor. (Borcena v. IAC, et. al., G.R. No. 70099, Jan. 7, 1987)
Extraordinary attorney's fee An indemnity for damages ordered by the court to be paid by the losing party in litigation. Such award belongs to the client but parties may stipulate that whatever may be awarded by the court as attorneys fees will go directly to the lawyer.
Note: The basis for this is any of the cases provided for by law where such award can be made, such as those authorized in Article 2208 of the Civil Code, and is payable not to the lawyer but to the client, unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof.
2.
3.
Ordinary Concept of Attorneys Fees Q: Aurora Pineda filed an action for declaration of nullity of marriage against Vinson Pineda, who was represented by Attys. Clodualdo de Jesus, Carlos Ambrosio and Emmanuel Mariano. The parties' proposal for settlement regarding Vinson's visitation rights over their minor child and the separation of their properties was approved by the court. The marriage was subsequently declared null and void. Throughout the proceedings counsels and their relatives and friends, availed of free products and treatments from Vinsons dermatology clinic. This notwithstanding, they billed him additional legal fees amounting to P16.5 million which he, however, refused to pay. Instead, he issued them several checks totaling P1.12 million as full payment for settlement. Still not satisfied, the three lawyers filed in the same court a motion for payment of lawyers' fees for P50 million, which is equivalent to 10% of the value of the properties awarded to Pineda in the case. Are their claim justified? A: No. Clearly, what they were demanding was additional payment for legal services rendered in the same case. Demanding P50 million on top of the generous sums and perks already given to them was an act of unconscionable greed. They could not charge Pineda a fee based on percentage, absent an express agreement to that effect. The payments to them in cash, checks, free products and services from Pinedas business more than sufficed for the work they did. The full
Note: A trial judge may not order the reduction of the attorneys fees on the ground that the attorney is below average standard of a lawyer. The opinion of the judge as to the capacity of a lawyer is not a basis of the right to a lawyers fees. (Fernandez v. Hon. Bello, No. L-14277, April 30, 1960)
Q: When are attorneys fees considered as unconscionable? A: 1. An amount compared to the value of the services is so disproportionate as to shock human conscience. One in which no man in his right senses, not under delusion, would make on one hand, and which no fair and honest man would accept on the other. a. Concepts of Attorneys Fees Q: What are the two concepts of attorneys fees? A: 1. Ordinary attorney's fee The reasonable compensation paid to a lawyer by his client for the legal services he has rendered to the latter.(Pineda, 2009)
2.
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payment for settlement should have discharged Vinson's obligation to them. As lawyers, they should be reminded that they are members of an honorable profession, the primary vision of which is justice. It is the lawyers despicable behavior in the case at bar which gives lawyering a bad name in the minds of some people. The vernacular has a word for it: nagsasamantala. The practice of law is a decent profession and not a money-making trade. Compensation should be but a mere incident. (Pineda v. de Jesus, G.R. No. 155224, Aug. 23, 2006) Q: DOY Mercantile Inc. refused to satisfy Atty. Gabriel, Jr.s attorneys fees, prompting the latter to file with the RTC a Motion to Allow Commensurate Fees and to Annotate Attorneys Lien on certain TCTs. The RTC fixed Atty. Gabriel, Jr.s fees and ordered that a lien be annotated on the TCTs. A Writ of Execution was later issued by the trial court in Atty. Gabriel, Jr.s favor. Upon Atty. Gabriel Jr.s motion for reconsideration, the RTC increased his fees. It then issued another Writ of Execution to enforce the new award but denied the Motion to Annotate the Award at the back of the TCTs. DOY, for its part, filed several petitions to set aside the RTC Orders involving the award of attorneys fees. Eventually, CA rendered a decision, fixing Atty. Gabriel, Jr.s fees at P200,000.00 and affirming the subsequent order of the RTC not to annotate such award on the TCTs. Should the court rely on the importance of the subject matter in controversy and the professional standing of counsel in awarding attorneys fee? A: No. DOYs contention that the appellate court should also have taken into account the importance of the subject matter in controversy and the professional standing of counsel in determining the latters fees is untenable. Although Rule 138 of the Rules of Court and Rule 20.01, Canon 20 of the Code of Professional Responsibility list several other factors in setting such fees, these are mere guides in ascertaining the real value of the lawyers service. Courts are not bound to consider all these factors in fixing attorneys fees. While a lawyer should charge only fair and reasonable fees, no hard and fast rule maybe set in the determination of what a reasonable fee is, or what is not. That must be established from the facts in each case. (DOY Mercantile, Inc. v. AMA Computer College, G.R. No. 155311, Mar. 31, 2004) Extraordinary Concept of Attorneys Fees Q: State the rule on attorneys fees being awarded as damages and its exceptions. A: GR: Attorneys fees as damages are not recoverable. An adverse decision does not ipso facto justify their award in favor of the winning party. XPN: Attorneys fees in the concept of damages may be awarded in any of the following circumstances: 1. 2. 3. 4. When there is an agreement; When exemplary damages are awarded; When defendants action or omission compelled plaintiff to litigate; In criminal cases of malicious prosecution a. b. Plaintiff was acquitted; and The person who charged him knowingly made the false statement of facts or that the filing was prompted by sinister design to vex him;
5. 6. 7. 8. 9.
10. 11.
12. 13.
When the action is clearly unfounded; When defendant acted in gross and evident bad faith; In actions for support; In cases of recovery of wages; In actions for indemnity under workmens compensation and employees liability laws; In a separate civil action arising from a crime; When at least double costs are awarded (costs of suit does not include attorneys fees); When the court deems it just and equitable; and When a special law so authorizes. (Art. 2208, NCC) b. Acceptance Fees
Q: What is an acceptance fee? A: It is an absolute fee arrangement which entitles a lawyer to get paid for his efforts regardless of the outcome of the litigation (Funa, 2009).
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Q: Rose engaged the services of Atty. Jack as counsel for five cases. In the Retainer Agreement, Rose agreed to pay Atty. Jack the amount of 200,000 as Acceptance Fee for the five cases plus an additional 1,500 Appearance Fee per hearing and in the event that damages are recovered, she would pay Atty. Jack 10% as success fee. Rose issued two checks amounting to 51,716.54 in favour of Atty. Jack however despite receipt of said amounts he failed to file a case in one of the five cases referred to him; one case was dismissed due to untimely appeal; and another case was dismissed but he failed to inform Rose about it before she left for abroad. Dissatisfied with the outcome of her cases she demanded from Atty. Jack the return of all the records she had entrusted to him however he returned only two of the five cases. She filed a complaint charging him with violation of Canon 16 and 16.03 of the Code of Professional Responsibility. Was there a violation of the said Canon by the respondent? A: None. From the records of the case, it was found that four of the cases referred by Rose were filed but were dismissed or terminated for causes not attributable to Atty. Jack; and that there was no probable cause to maintain the suit. No fault or negligence can be attributed to the Atty. Jack. Rose still owes payment of acceptance fee because she only paid 51, 716.54 An acceptance fee is not a contingent fee, but is an absolute fee arrangement which entitles a lawyer to get paid for his efforts regardless of the outcome of the litigation. Dissatisfaction from the outcome of the cases would not render void the retainer agreement for Atty. Jack appears to have represented the interest of Rose. (Yu v Bondal, A.C. No. 5534, January 17, 2005)
Note: The expiration of the retainer contract between the parties during the pendency of the labor case does not extinguish the respondents right to attorneys fees. (Uy v. Gonzales, A.C. No. 5280, Mar. 30, 2004)
2. 3.
4.
5.
6.
The lawyer agrees to be paid per court appearance. Contingent fee where the lawyer is paid for his services depending on the success of the case. This applies usually in civil suits for money or property where the lawyers fee is taken from the award granted by the court. Attorney de oficio. The attorney is appointed by the court to defend the indigent litigant in a criminal case. The client is not bound to pay the attorney for his services although he may be paid a nominal fee taken from a public fund appropriated for the purpose. Legal aid. The attorney renders legal services for those who could not afford to engage the services of paid counsel. Quantum meruit basis. If there is no specific contract between the lawyer and the client, the lawyer is paid on quantum meruit basis, that is, what the lawyer deserves for his services.
Q: What is a retainer? A: It may refer to two concepts: 1. Act of a client by which he engages the services of an attorney to render legal advice or to defend or prosecute his cause in court; or Fee which a client pays to the attorney.
2.
Q: Concept Placement retained the services of Atty. Funk. Under their retainer contract, Atty. Funk is to render various legal services except litigation, quasi-judicial and administrative proceedings and similar actions for which there will be separate billings. Thereafter, Atty. Funk represented Concept Placement in the case filed against it for illegal dismissal. While the labor case was still pending, Concept Placement terminated the services of Atty. Funk. Nevertheless, Atty. Funk continued handling the case. Atty. Funk then advised Concept Placement of the POEAs favorable decision and requested the payment of his attorneys fees. Concept Placement refused. Is Atty. Funk entitled to attorneys fees for assisting Concept Placement as counsel in the labor case even if the services of Atty. Funk were already terminated? A: Yes. The expiration of the retainer contract between the parties during the pendency of the
Q: What are the different types of fee arrangements an attorney may enter into with his client? A: 1. Retainers fee where the lawyer is paid for services for an agreed amount for the case.
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labor case does not extinguish the respondents right for attorneys fees. The Court found that while the petitioner and the respondent did not execute a written agreement on the fees in the labor case aside from the Retainer Agreement, the petitioner did categorically and unequivocally admit in its Compulsory Counterclaim that it has engaged the services of the respondent as its counsel for a fee of P60, 000, etc. (Concept Placement Resources Inc. v. Atty. Funk, G.R. No. 137680, February 6, 2004) Q: What are the kinds of retainer agreements on attorneys fees? A: 1. General retainer or retaining fee It is the fee paid to a lawyer to secure his future services as general counsel for any ordinary legal problem that may arise in the ordinary business of the client and referred to him for legal action. The client pays fixed retainer fees, which could be monthly or otherwise. The fees are paid whether or not there are cases referred to the lawyer; Special retainer It is a fee for a specific or particular case or service rendered by the lawyer for a client. c. Contingency Fee Arrangements Q: What is a contingency fee arrangement? A: Contingent fee where the lawyer is paid for his services depending on the success of the case. This applies usually in civil suits for money or property where the lawyers fee is taken from the award granted by the court.
Note: Contingent fee contracts are subject to the supervision and close scrutiny of the court in order that clients may be protected from unjust charges. The amount of contingent fees agreed upon by the parties is subject to the stipulation that counsel will be paid for his legal services only if the suit or litigation prospers. A much higher compensation is allowed as contingent fees because of the risk that the lawyer may get nothing if the suit fails. (Evangelina Masmud v. NLRC, et. al., G.R. No. 183385, Feb. 13, 2009) Note: The acceptance of an initial fee before or during the progress of the litigation does no detract from the contingent nature of the fees, so long as the bulk thereof is made dependent upon the successful outcome of the action. (Lapena, 2009) Note: If a lawyer employed on contingent basis dies or becomes disabled before the final adjudication or settlement of the case has been obtained, he or his estate will be allowed to recover the reasonable value of the services rendered. The recovery will be allowed only after the successful termination of the litigation in the clients favor. (Morton v. Forsee, Ann. Cas. 1914 D. 197; Lapena, 2009, Pineda, 2009)
Q: Chester asked Laarni to handle his claim to a sizeable parcel of land in Quezon City against a well-known property developer on a contingent fee basis. Laarni asked for 15% of the land that may be recovered or 15% of whatever monetary settlement that may be received from the property developer as her only fee contingent upon securing a favorable final judgment or compromise settlement. Chester signed the contingent fee agreement. Assume the property developer settled the case after the case was decided by the Regional Trial Court in favor of Chester for P1 Billion. Chester refused to pay Laarni P150 Million on the ground that it is excessive. Is the refusal justified? Explain. A: The refusal of Chester to pay is unjustified. A contingent fee is impliedly sanctioned by Rule 20.01(f) of the CPR. A much higher compensation is allowed as contingent fees is consideration of the risk that the lawyer will get nothing if the suit fails. In several cases, the Court has indicated that a contingent fee of 30% of the money or property that may be recovered is reasonable. Moreover, although the developer settled the case, it was after the case was decided by the RTC in favor of Chester, which shows that Atty. Laarni has already rendered service to the client. Q: Assume there was no settlement and the case eventually reached the Supreme Court which promulgated a decision in favor of Chester. This time Chester refused to convey to Laarni 15% of the litigated land as stipulated on the ground that the agreement violates Article 1491 of the Civil Code, which prohibits lawyers from acquiring by purchase properties and rights, which are the object of litigation in which they take part by reason of their profession. Is the refusal justified? Explain. A: Chesters refusal is not justified. A contingent fee arrangement is not covered by Art.1491 of the Civil Code, because the transfer or assignment of the property in litigation takes effect only upon finality of a favorable judgment. (Director of Lands v. Ababa, No. L-26096, February 27, 1979);
2.
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Macariola v. Asuncion, A.C. No. 133-J, May 31, 1982) (2008 Bar Question) Q: Evangelina Masmuds husband, the late Alexander, filed a complaint against his employer for non-payment of permanent disability benefits, medical expenses, sickness allowance, moral and exemplary damages, and attorneys fees. He engaged the services of Atty. Go, as his counsel and agreed to pay attorneys fees on a contingent basis, as follows: 20% of total monetary claims as settled or paid and an additional 10% in case of appeal. Labor Arbiter rendered granted the monetary claims of Alexander. Eventually, after several appeals, the decision being favorable to Evangelina (substituted her deceased husband), the decision became final and executory. Upon motion of Atty. Go, the surety company delivered to the NLRC Cashier, the check amounting to P3,454,079.20. Thereafter, Atty. Go moved for the release of the said amount to Evangelina. Out of the said amount, Evangelina paid Atty. Go the sum of P680,000.00. Dissatisfied, Atty. Go filed a motion to record and enforce the attorneys lien alleging that Evangelina reneged on their contingent fee agreement. Evangelina manifested that Atty. Gos claim for attorneys fees of 40% of the total monetary award was null and void based on Article 111 of the Labor Code. Is her contention correct? A: No. Art. 111. Attorney's fees. (a) In cases of unlawful withholding of wages, the culpable party may be assessed attorney's fees equivalent to ten percent of the amount of the wages recovered. Contrary to Evangelinas proposition, Article 111 of the Labor Code deals with the extraordinary concept of attorneys fees. It regulates the amount recoverable as attorney's fees in the nature of damages sustained by and awarded to the prevailing party. It may not be used as the standard in fixing the amount payable to the lawyer by his client for the legal services he rendered. In this regard, Section 24, Rule 138 of the Rules of Court should be observed in determining Atty. Gos compensation. The said Rule provides: Sec. 24. Compensation of attorneys; agreement as to fees. An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services, with a view to the importance of the subject matter of the controversy, the extent of the services rendered, and the professional standing of the attorney. No court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation, but may disregard such testimony and base its conclusion on its own professional knowledge. A written contract for services shall control the amount to be paid therefor unless found by the court to be unconscionable or unreasonable. The retainer contract between Atty. Go and Evangelina provides for a contingent fee. The contract shall control in the determination of the amount to be paid, unless found by the court to be unconscionable or unreasonable. The criteria found in the Code of Professional Responsibility are also to be considered in assessing the proper amount of compensation that a lawyer should receive. (Canon 20, Rule 20.01, CPR)(Evangelina Masmud v. NLRC, et. al., G.R. No. 183385, Feb. 13, 2009) Q: What is a champertous contract? A: It is one where the lawyer stipulates with his client in the prosecution of the case that he will bear all the expenses for the recovery of things or property being claimed by the client, and the latter agrees to pay the former a portion of the thing or property recovered as compensation. It is void for being against public policy. (Like gambling) (1999, 2000, 2006 Bar Questions)
Note: A champertous contract which is considered void due to public policy, because it would make him acquire a stake in the outcome of the litigation which might lead him to place his own interest above that of the client (Bautista v. Gonzales, A.M. No. 1625, Feb. 12, 1990).
Q: What is the difference between a contingent contract and champertous contract? A:
CONTINGENT CONTRACT
Payable in cash Lawyers do not undertake to pay all expenses of litigation Valid
CHAMPERTOUS CONTRACT
Payable in kind only Lawyers undertake to pay all expenses of litigation Void
Q: The contract of attorney's fees entered into by Atty. Quintos and his client, Susan, stipulates that if a judgment is rendered in favor of the latter, Atty. Quintos gets 60% of the property recovered as contingent fee. In turn, he will
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assume payment of all expenses of the litigation. May Atty. Quintos and Susan increase the amount of the contingent fee to 80%? A: No. Atty. Quintos and Susan cannot agree to increase the amount of the contingent fee to 80% because the agreement is champertous. Even if there is no champertous provision present, the contingent fee of 80% of the property recovered could still be considered as unconscionable, because it is so disproportionate as to indicate that an unjust advantage had been taken of the client, and is revolting to human conscience. Contracts for attorney's fees are always subject to control by the courts. (2006 Bar Question) Rule 20.02, Canon 20, CPR - A lawyer shall, in cases of referral, with the consent of the client, be entitled to a division of fees in proportion to the work performed and responsibility assumed.
Note: This is not in the nature of a brokers commission.
has full knowledge and approval thereof. (Sec. 20 (e), Rule 138) d. Attorneys Lien
Note: A lawyer is not entitled to unilaterally appropriate his clients money for himself by the mere fact alone that the client owes him attorneys fees. (Rayos v. Hernandez, GR No. 169079, February 12, 2007)
Q: Define an attorneys retaining lien. A: A retaining lien is the right of an attorney to retain the funds, documents and papers of his client which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof. (1994, 1995, 1996, 1998, 2000 Bar Questions) Q: What are the requisites in order for an attorney to be able to exercise his retaining lien? A: ALU 1. Attorney-client relationship; 2. Lawful possession by the lawyer of the clients funds, documents and papers in his professional capacity; and 3. Unsatisfied claim for attorneys fees or disbursements. Q: Harold secured the services of Atty. Jarencio to collect from various debtors. Accordingly, Atty. Jarencio filed collection cases against the debtors of Harold and in fact obtained favorable judgments in some. Atty. Jarencio demanded from Harold his attorneys fees pursuant to their agreement but Harold refused. When one of the defendants paid his indebtedness of P20,000 through Atty. Jarencio, the latter refused to turn over the money to Harold; instead, Atty. Jarencio applied the amount to his attorneys fees having in mind the provisions of the Civil Code on legal compensation or set-off to justify his act. Was Atty. Jarencio correct in refusing to turn over to his client the amount he collected? Discuss fully. A: No. A lawyer has a retaining lien which entitled him to retain possession of a clients document, money or other property which come into the hands of the attorney professionally, until the general balance due to him for professional services is paid. Under Section 37, Rule 138 of the Rules of Court, the attorney cannot be compelled to surrender the document in his possession
Q: How does Lawyer- Referral System work? A: Under this system, if another counsel is referred to the client, and the latter agrees to take him as collaborating counsel, and there is no express agreement on the payment of attorneys fees, the said counsel will receive attorneys fees in proportion to the work performed and responsibility assumed. The lawyers and the client may agree upon the proportion but in case of disagreement, the court may fix the proportional division of fees. (Lapena, 2009) Rule 20.03 - A lawyer shall not, without the full knowledge and consent of the client, accept any fee, reward, costs, commission, interest, rebate or forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client. (1997, 2003 Bar Questions)
Rationale: Intended To secure the fidelity of the lawyer to his clients cause and to prevent a situation in which the receipt of him of a rebate or commission from another with the clients business may interfere with the full discharge of his duty to his client. (Report of the IBP Committee)
XPN: A lawyer may receive compensation from a person other than his client when the latter
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without prior proof that his fees have been duly satisfied. However, Atty. Jarencio here cannot appropriate the sum of P20,000. If there is a dispute between him and Harold as to the amount of the fees he is entitled, he must file an action for recovery of his fee or record a charging lien so that the court can fix the amount to which he is entitled. (1995 Bar Question) Q: Upon being replaced by Justice C, Atty. B, the former counsel of the parents of the victims of the OZONE Disco tragedy, was directed to forward all the documents in his possession to Justice C. Atty. B refused, demanding full compensation pursuant to their written contract. Sensing that a favorable judgment was forthcoming, Atty. B filed a motion in court relative to his attorneys fees, furnishing his former clients with copies thereof. Is Atty. B legally and ethically correct in refusing to turn over the documents and in filing the motion? Explain. A: Yes. He is entitled to a retaining lien which gives him the right to retain the funds, documents and papers of his client which have lawfully come to his possession until his lawful fees and disbursement have been paid (Sec. 37, Rule 138, Rules of Court; Rule 16.03, Code of Professional Responsibility). Likewise, he is legally and ethically correct in filing a motion in court relative to his fees. He is entitled to a charging lien upon all judgments for the paying of money, and executions issued in pursuance of such judgments, which he has secured in a litigation of his client, from and after the time when the records of the court rendering such judgment or issuing such execution. (1996 Bar Question) Q: Define an attorneys charging lien. A: A charging lien is the right of a lawyer to the same extent upon all judgments for the payment of money, and executions issued in pursuance of such judgments which he has secured in a litigation of his client, from and after the time when he shall have caused a statement of his claim of such lien to be entered upon the records of the court rendering such judgment, or issuing such execution, and shall have caused written notice thereof to be delivered to his client and to the adverse party; and he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his fees and disbursements. (Sec. 37, Rule 138, Revised Rules of Court) (1994, 2008 Bar Questions) Q: What are the requisites in order for an attorney to be able to exercise his charging lien? A: 1. 2. 3. 4. 5. Existence of attorney-client relationship; The attorney has rendered services; Favorable money judgment secured by the counsel for his client; The attorney has a claim for attorneys fees or advances; and A statement of the claim has been duly recorded in the case with notice thereof served upon the client and the adverse party.
Note: A charging lien, to be enforceable as a security for the payment of attorneys fees, requires as a condition sine qua non a judgment for money and execution in pursuance of such judgment secured in the main action by the attorney in favor of his client.
Q: The client with whom you have a retainer agreement had not been paying you contrary to your stipulations on legal fees, even as you continue to appear at hearings in his case. A judgment was finally rendered in your clients favor awarding him the real property in litigation as well as a substantial amount in damages. As the counsel who had not been paid, what steps can you take to protect your interests? A: I will cause a charging lien for my fees to be recorded and attached to the judgment insofar as it is for the payment of money in damages. Then, I will have the right to collect my fees out of such judgments and executions issued in pursuance thereof. (1994 Bar Question) Q: What is the difference between a retaining lien and a charging lien? A: RETAINING LIEN CHARGING LIEN As to Nature Passive lien. It cannot Active lien. It can be be actively enforced. enforced by It is a general lien. execution. It is a special lien. As to Basis Lawful possession of Securing of a papers, documents, favorable money property belonging judgment for client. to the client.
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As to Coverage Covers papers, Covers all judgments documents, and for the payment of properties in the money and execution lawful possession of issued in pursuance of the attorney by such judgments. reason of his professional employment. As to Effect As soon as the As soon as the claim attorney gets for attorneys fees had possession of papers, been entered into the documents, or records of the case. property. As to Applicability May be exercised Generally, exercised before judgment or only when the execution or attorney had already regardless thereof. secured a favorable judgment for his client. As to Extinguishment When possession When client loses lawfully ends as action as lien may only when lawyer be enforced against voluntarily parts with judgment awarded in funds, documents, favor of client, and papers of client proceeds or offers them as thereof/executed evidence. thereon. e. Fees and Controversies with Clients Rule 20.04, Canon 20, CPR - A lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud. (1998 Bar Question) Q: Can a lawyer file a case against his client for the enforcement of attorneys fees? A: GR: A lawyer should avoid the filing of any case against a client for the enforcement of attorneys fees.
Note: The legal profession is not a money-making trade but a form of public service. Lawyers should avoid giving the impression that they are mercenary (Perez v. Scottish Union and National Insurance Co., C.A. No. 8977, March 22, 1946). It might even turn out to be unproductive for him for potential clients are likely to avoid a lawyer with a reputation of suing his clients.
XPN: 1. To prevent imposition 2. To prevent injustice 3. To prevent fraud

Note: A client may enter into a compromise agreement without the intervention of the lawyer, but the terms of the agreement should not deprive the counsel of his compensation for the professional services he had rendered. If so, the compromise shall be subjected to said fees. If the client and the adverse party who assented to the compromise are found to have intentionally deprived the lawyer of his fees, the terms of the compromise, insofar as they prejudice the lawyer, will be set aside, making both parties accountable to pay the lawyers fees. But in all cases, it is the client who is bound to pay his lawyer for his legal representation. (Atty. Gubat v. NPC, G.R. No. 167415, Feb. 26, 2010)
Q: Where and how may attorney's fees be claimed by the lawyer? A: 1. In the same case It may be asserted either in the very action in which the services of a lawyer had been rendered or in a separate action. In a separate civil action A petition for attorney's fees may be filed before the judgment in favor of the client is satisfied or the proceeds thereof delivered to the client. The determination as to the propriety of the fees or as to the amount thereof will have to be held in abeyance until the main case from which the lawyer's claim for attorney's fees may arise has become final. Otherwise, the determination of the courts will be premature.
Note: Contracts for employment may either be oral or express.
2.
Q: What are the instances when an independent civil action to recover attorneys fees is necessary? A: 1. Main action is dismissed or nothing is awarded; Court has decided that it has no jurisdiction over the action or has already lost it;
2.
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3. Person liable for attorneys fees is not a party to the main action; Court reserved to the lawyer the right to file a separate civil suit for recovery of attorneys fees; Services for which the lawyer seeks payment are not connected with the subject litigation; and Judgment debtor has fully paid all of the judgment proceeds to the judgment creditor and the lawyer has not taken any legal step to have his fees paid directly to him from the judgment proceeds. Q: Is attorneys fee deemed incorporated in the general prayer for such other relief and remedy as this court may deem just and equitable? A: No. Attorneys fees must be specifically prayed for and proven and justified in the decision itself. (Trans-Asia Shipping Lines, Inc. vs. CA, G.R. No. 118126, March 4, 1996) Q: Can the Court of Appeals review the decision of lower courts fixing attorneys fees? A: Yes. The CA, in the exercise of its jurisdiction to review the decisions of lower courts can determine whether the attorneys fees fixed by said courts are reasonable under the circumstances. After taking into consideration the various factors to guide the courts in the fixing of such fees, an appellate court can reduce the attorneys fees stipulated by the parties in a contract for professional services or awarded by the lower court to levels which it deems reasonable. 8. PRESERVATION OF CLIENTS CONFIDENCES 2. Formal defect or because the court has found the amount to be unconscionable the lawyer may recover for any services rendered based on quantum meruit. CANON 21, CPR - A LAWYER SHALL PRESERVE THE CONFIDENCES AND SECRETS OF HIS CLIENTS EVEN AFTER THE ATTORNEY-CLIENT RELATION IS TERMINATED. (1998, 2006 Bar Questions)
Note: The protection given to the client is perpetual and does not cease with the termination of the litigation nor is affected by the party ceasing to employ the attorney and employ another or any other change of relation between them. It even survives the death of the client.
4.
5.
6.
Q: What are the effects of the nullity of contract on the right to attorneys fees? A: If the nullification is due to: 1. The illegality of its object - the lawyer is precluded from recovering; and
Q: To what compensation is a lawyer entitled to? A: 1. Counsel de parte He is entitled to the reasonable attorneys fees agreed upon, or in the absence thereof, on quantum meruit basis. Counsel de oficio The counsel may not demand from the accused attorneys fees even if he wins the case. He may, however, collect from the government funds, if available based on the amount fixed by the court. Amicus Curae not entitled to attorneys fees.
2.
Q: What is confidence? A: It refers to the information protected by the attorney-client privilege. (Report of IBP Committee) Q: What is secret? A: It refers to other information gained in the professional relationship that the client has requested to be held inviolate or the disclosure of which would be embarrassing or detrimental to the client. (Ibid)
3.
Q: Why is there a need to state the reason for the award of attorneys fees in the text of the courts decision? A: The award of attorneys fees being an exception rather than the general rule, it is necessary for the court to make findings of facts and law that would bring the case within the exception and justify the grant of such award. (Agustin vs. CA, G.R. No. 84751, June 6, 1990)
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Rule 21.01, Canon 21, CPR - A lawyer shall not reveal the confidences or secrets of his client except; a. When authorized by the client after acquainting him of the consequences of the disclosure; When required by law; When necessary to collect his fees or to defend himself, his employees or associates or by judicial action. Q: What are the instances when a lawyer may testify as a witness in a case which he is handling for a client? A: 1. On formal matters, such as the mailing, authentication or custody of an instrument and the like; Acting as an expert on his free; Acting as an arbitrator; Depositions; and On substantial matters in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel.
b. c.
2. 3. 4. 5.
Q: May a lawyer reveal the confidences or secrets of his client? A: GR: A lawyer shall not reveal the confidences and secrets of his client.
Note: An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorneys secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity. (Sec. 24(b), Rule 130, RRC)
Rule 21.02, Canon 21, CPR - A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto. Q: Bun Siong Yao is a majority stockholder of Solar Farms & Livelihood Corporation and Solar Textile Finishing Corporation. Atty. Leonardo Aurelio is also a stockholder and the retained counsel of both the corporation and Bun Siong Yao. The latter purchased several parcels of land using his personal funds but were registered in the name of the corporations upon the advice of Atty. Aurelio. After a disagreement between Atty. Aurelio and Bun Siong Yaos wife, the former demanded the return of his investment in the corporations but when Yao refused to pay, he filed 8 charges for estafa and falsification of commercial documents against Yao and his wife and the other officers of the corporation. Yao alleged that the series of suits is a form of harassment and constitutes an abuse of the confidential information which Atty. Aurelio obtained by virtue of his employment as counsel. Atty. Aurelio however said that he only handled isolated labor cases for the said corporations. Did Atty. Aurelio abuse the confidential information he obtained by virtue of his employment as counsel? A: Yes. The long-established rule is that an attorney is not permitted to disclose communications made to him in his professional
XPN: a. When authorized by his client after acquainting him of the consequences of the disclosure;
Note: There is a waiver of the privilege by the client. The only instance where the waiver of the client alone is insufficient is when the person to be examined with reference to any privileged communication is the attorneys secretary, stenographer or clerk, in respect to which the consent, too, of the attorney is necessary.
b. c.
When required by law; When necessary to collect his fees or to defend himself, his employees or associates by judicial action.
Note: Payment of retainer fee is not essential before an attorney can be required to safeguard a prospective clients secret acquired by the attorney during the course of the consultation with the prospective client, even if the attorney did not accept the employment.
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character by a client, unless the latter consents. Atty. Aurelio took advantage of his being a lawyer in order to get back at Yao. In doing so, he has inevitably utilized information he has obtained from his dealings with Yao and Yao's companies for his own end. Lawyers cannot be allowed to exploit their profession for the purpose of exacting vengeance or as a tool for instigating hostility against any person most especially against a client or former client. (Bun Siong Yao v. Aurelio, A.C. No. 7023, Mar. 30, 2006) Rule 21.03, Canon 21, CPR - A lawyer shall not, without the written consent of his client, give information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any other similar purposes. Q: Certain government officers, armed with search warrant duly issued, seized among other things, a filing cabinet belonging to Atty. X. In seeking the return of the cabinet, Atty. X claimed that the cabinet contained documents and articles belonging to his clients but the government refused to return the cabinet. Atty. X petitioned the court which issued the warrant, praying that the agents be prohibited from opening the cabinet. Should Atty. Xs petition be given due course? A: Yes. The lower court cannot order the opening of said cabinet.. To do so is in violation of his rights as an attorney. It would be tantamount to compelling him to disclose his clients secrets. (Lapena, 2009)
Note: Confidential information obtains even against government agencies and instrumentalities. Funa, 2009)
& Meyer Law Offices. During the meeting, Niko divulged highly private information to Atty. Henry, believing that the lawyer would keep the confidentiality of the information. Subsequently, Niko was shocked when he learned that Atty. Henry had shared the confidential information with his law partner, Atty. Meyer, and their common friend, private practitioner Atty. Canonigo. When confronted, Atty. Henry replied that Niko never signed any confidentiality agreement, and that he shared the information with the two lawyers to secure affirmance of his legal opinion on Nikos problem. Did Atty. Henry violate any rule of ethics? Explain fully. A: Atty. Henry violated Canon No. 21 of the CPR by sharing information obtained from his client Niko with Atty. Canonigo. Canon No. 20 provides that a lawyer shall preserve the confidences or secrets of his client even after the attorney-client relationship is terminated. The fact that Atty. Canonigo is a friend from whom he intended to secure legal opinion on Nikos problem, does not justify such disclosure. He cannot obtain a collaborating counsel without the consent of the client (Rule 18.01, CPR). On the other hand, Atty. Henry did not violate Canon 21 in sharing information with his partner Atty. Meyer. Rule 21.04 of the CPR specifically provides that a lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client. Atty. Henry was not prohibited from disclosing the affairs of Niko with the members of his law firm. The employment of a member of a firm is generally considered as employment of the firm itself. (Hilado v. David, G.R. No. L-961, Sept. 21, 1949) (2008 Bar Question) Rule 21.05, Canon 21, CPR A lawyer shall adopt such measures as may be required to prevent those whose services are utilized by him, from disclosing or using confidences or secrets of the client. Rule 21.06, Canon 21, CPR A lawyer shall avoid indiscreet conversation about a clients affairs even with members of his family. Rule 21.07, Canon 21, CPR A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest.
Rule 21.04, Canon 21, CPR - A lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client.
Note: Professional employment of a law firm is equivalent to retainer of members thereof. In a law firm, partners or associates usually consult one another involving their cases and some work as a team. Consequently, it cannot be avoided that some information about the case received from the client may be disclosed to the partners or associates.
Q: In need of legal services, Niko secured an appointment to meet with Atty. Henry of Henry
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Q: Can the lawyer refuse from disclosing his clients identity? A: GR: A lawyer may not invoke privileged communication to refuse revealing a clients identity. XPN: 1. When there is a strong possibility that revealing the clients name would implicate the client in the very activity for which he sought the lawyers advice; 2. When disclosure would open the client to civil liability; 3. When governments lawyers have no case against an attorneys client and revealing the clients name would furnish the only link that would come from the chain of testimony necessary to convict him. Q: What is the reason why a lawyer may not invoke privileged communication to refuse revealing a clients identity? A: 1. Due process considerations require that the opposing party should know the adversary; The privilege pertain to the subject matter of the relationship; The privilege begins to exist only after attorney-client relationship has been established hence it does not attach until there is a client; and The court has a right to know that the client whose privileged information is sought to be protected is flesh and blood. 9. WITHDRAWAL OF SERVICES CANON 22, CPR - A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES (1994,1995,1997,2000,2001,2004,2005, 2008 Bar Question) Q: When is a lawyer allowed to withdraw his services? A: A lawyer shall withdraw his services only for good cause and upon notice appropriate in the circumstances. GR: A lawyer lacks the unqualified right to withdraw once he has taken a case. By his acceptance, he has impliedly stipulated that he will prosecute the case to conclusion. This is especially true when such withdrawal will work injustice to a client or frustrate the ends of justice. XPN: The right of a lawyer to retire from the case before its final adjudication, which arises only from: 1. 2. The clients written consent; or By permission of the court after due notice and hearing.
Q: Does the written consent of the client require approval of the court to be effective? A: The withdrawal in writing of a lawyer as counsel for a party, with the clients written conformity, does not require the approval of the court to be effective, especially if the withdrawal is accompanied by a formal appearance of a new counsel. Q: What are the instances when a lawyer may withdraw his services without the consent of his client? A: FIC MOVIE 1. When the client deliberately Fails to pay the fees for the services or fails to comply with the retainer agreement; 2. When the client pursues an Illegal or immoral course of conduct in connection with the matter he is handling; 3. When the lawyer finds out that he might be appearing for a Conflicting interest; 4. When the Mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively; 5. Other similar cases; 6. When the client insists that the lawyer pursue conduct in Violation of these canons and rules; 7. When his Inability to work with co-counsel will not promote the best interest of the client; and 8. When the lawyer is Elected or appointed to a public office. (Rule 22.01, CPR) Q: What is the procedure when withdrawal is without clients consent? A: 1. File a petition for withdrawal in court.
2. 3.
4.
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2. Serve a copy of this petition upon his client and the adverse party at least 3 days before the date set for hearing.
Note: While clients have the right to terminate their relations with their counsel and make substitution or change at any stage of the proceedings, the exercise of such right is subject to compliance with the prescribed requirements. This rule is intended to ensure the orderly disposition of cases, without it there will be confusion in the service of processes, pleadings and other papers.
Note: He should present his petition well in advance of the trial of the action to enable the client to secure the services of another lawyer. If the application is filed under circumstances that do not afford a substitute counsel sufficient time to prepare for trial or that work prejudice to the clients cause, the court may deny his application and require him to conduct the trial. A lawyer should not presume that the court will grant his petition for withdrawal. Until his withdrawal shall have been proved, the lawyer remains counsel of record who is expected by his client as well as by the court to do what the interests of his client require.
Q: What are the limitations on clients right to discharge the services of his lawyer? A: When made with justifiable cause, it shall negate the attorneys right to full payment of compensation. 2. The attorney may, in the discretion of the court, intervene in the case to protect his right to fees. 3. A client may not be permitted to abuse his right to discharge his counsel as an excuse to secure repeated extensions of time to file a pleading or to indefinitely avoid a trial. Q: Is notice of discharge necessary? A: It is not necessary between client and attorney. But insofar as the court and the adverse party is concerned, the severance of the relation of attorney and client is not effective until: 1. A notice of discharge by the client or a manifestation clearly indicating that purpose is filed with the court; and 2. A copy thereof served upon the adverse party. Q: What should a lawyer do if no notice of discharge was filed by the client with the court? A: If the client has not filed a notice of discharge, the duty of the attorney, upon being informed by his client that his services have been dispensed with, is to file: 1. 2. A notice of withdrawal with the clients conformity; or An application to retire from the case, he being released from professional responsibility only after his dismissal or withdrawal is made of record. 1.
a. Discharge of the Attorney by the Client (1994,1997,1998 Bar Question) Q: Can a client discharge the services of his lawyer without a cause? A: Yes. A client has the right to discharge his attorney at any time with or without a cause or even against his consent. 1. With just cause lawyer is not necessarily deprived of his right to be paid for his services. He may only be deprived of such right if the cause for his dismissal constitutes in itself a sufficient legal obstacle to recovery. Without just cause a. No express written agreement as to fees- reasonable value of his services up to the date of his dismissal (quantum meruit). b. There is written agreement and the fee stipulated is absolute and reasonable full payment of compensation. c. The fee stipulated is contingent. d. If dismissed before the conclusion of the action- reasonable value of his services (quantum meruit) e. If contingency occurs or client prevents its occurrence full amount.
2.
Note: Lawyer should question his discharge otherwise he will only be allowed to recover on quantum meruit basis. Note: The existence or non-existence of a just cause is important only in determining the right of an attorney to compensation for services rendered.
Q: What are the conditions for substitution of counsel? A: 1. 2. 3. Written application Written consent of the client Written consent of the attorney to be substituted, or in the absence thereof,
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proof of service of notice of said motion to the attorney to be substituted in the manner prescribed by the rules. b. Withdrawal by the Attorney Rule 22.01, Canon 22, CPR - A lawyer may withdraw his services in any of the following case: a. When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling; When the client insists that the lawyer pursue conduct violative of these canons and rules; When the inability to work with cocounsel will not promote the best interest of the client; When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively; When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement When the lawyer is elected or appointed to public office; and Other similar cases. by the defendant. But the client insisted on the directive, or else he would not pay the agreed attorneys fees. When the case was called for hearing the next morning the lawyer forthwith moved in open court that he be relieved as counsel for the defendant. Both the defendant and the plaintiffs counsel objected to the motion. Under the given facts, is the defense lawyer legally justified in seeking withdrawal from the case? Why or why not? Reason briefly. A: Yes, he is justified. Under rule 22.01 of the CPR, a lawyer may withdraw his services if the client insists that the lawyer pursue conduct violative of these canon and rules. The insistence of the client that the lawyer present witnesses whom he personally knows to have been perjured, will expose him to criminal and civil liability and violate his duty of candor, fairness and good faith to the court. Q: Was the motion for relief as counsel made by the defense lawyer in full accord with the procedural requirements for a lawyers withdrawal from a court case? Explain briefly. A: No his actuation is not in accord with the procedural requirements for the lawyers withdrawal from a court case. Whether or not a lawyer has a valid cause to withdraw from a case, he cannot just do so and leave the client in the cold unprotected. He must serve a copy of his petition upon the client and the adverse party. He should, moreover, present his petition well in advance of the trial of the action to enable the client to secure the services of another lawyer. (2004 Bar Question) Q: Atty. X filed a notice of withdrawal of appearance as counsel for the accused Y after the prosecution rested its case. The reason for the withdrawal of Atty. X was the failure of accused Y to affix his conformity to the demand of Atty. X for increase in attorney's fees. Is the ground for withdrawal justified? Explain. A: The ground for the withdrawal is not justified. Rule 22.01 (e) of the Code of Professional Responsibility provides that a lawyer may withdraw his services when the client deliberately fails to pay the fees for his services or fails to comply with the retainer agreement. In this case, the client has not failed to pay the lawyer's fees or to comply with the retainer agreement. He has only refused to agree with the lawyer's demand
b.
c.
d.
e.
f. g.
Note: In all the a-e cases above, the lawyer must file
a written motion with an express consent of his client and the court shall determine whether he ought to be allowed to retire. Note: He may also retire at any time from an action or special proceeding without the consent of his client, should the court, on notice to the client and attorney, and on hearing, determine that he ought to be allowed to retire. (Sec. 26, Rule 138, RRC)
Q: What is Hot Potato Doctrine? A: It refers to the prohibition from dropping smaller clients (like hot potatoes) in order to pick up more lucrative clients. Q: On the eve of the initial hearing for the reception of evidence for the defense, the defendant and his counsel had a conference where the client directed the lawyer to present as principal defense witnesses 2 persons whose testimonies were personally known to the lawyer to have been perjured. The lawyer informed his client that he refused to go along with the unwarranted course of action proposed
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for an increase in his fees. It is his right to refuse that is part of his freedom of contract. (2000 Bar Question) Rule 22.02, Canon 22,CPR - A lawyer who withdraws or is discharged shall, subject to a retaining lien, immediately turn over all papers and property to which the client is entitled, and shall cooperate with his successor in the orderly transfer of the matter, including all information necessary for the proper handling of the matter. Q: What are the duties of a discharged lawyer or one who withdraws? A: 1. Immediately turn-over all papers and property to which the client is entitled; and To cooperate with his successor in the orderly transfer of the case. c. Liabilities of a Lawyer Q: What are the requisites for the liability of a lawyer for damages? A: AWI 1. Attorney-client relationship; 2. Want of reasonable care and diligence by lawyer 3. Injury sustained by client as a proximate result of the lawyers negligence. Q: What are the kinds of damages? A: 1. Nominal where client lost the litigation as a consequence of lawyers gross omission of negligence Actual/ Compensatory Moral Attorneys fees 5. 6. Violation of communication privilege; Liability for costs of suit (treble costs) when lawyer is made liable for insisting on client's patently unmeritorious case or interposing appeal merely to delay litigation.
Q: When will the liability of a lawyer for breach of fiduciary obligation arise? A: A lawyer may be held liable if he fails in his obligation to make an accounting of funds or property that may come to his possession for a lawyer holds his clients funds or property in trust for his client. Q: What are the effects of lawyers failure to return clients money or property after demand? A: 1. 2. 3. 4. There will be a presumption that the lawyer misappropriated the same; It will give rise to civil liability of the lawyer; Criminal liability Administrative liability.
2.
Q: What is the remedy of the client? A: Recover property from lawyer, together with its fruits, subject to clients returning to his lawyer the purchase price thereof and the legal interests thereon. Q: When is a lawyer not liable for libelous words in the pleadings? A: A lawyer is exempted from liability for slander, libel or for words otherwise defamatory, published in the course of judicial proceedings, provided the statements are connected with, relevant, pertinent and material to the cause in hand or subject of inquiry.
Note: Test of relevancy The matter to which the privilege does not extend must be palpably wanting in relation to the subject of controversy, that no reasonable man can doubt its relevancy or propriety. Pleadings should contain plain and concise statements of material facts and if pleader goes beyond requisites of law and alleges irrelevant matter, which is libelous, he loses his privilege and may be liable in a separate suit.
2. 3. 4.
Note: For nos. 2-4 there should be a showing that: 1. The lawyer had exercised due diligence 2. His client would have succeeded in recovering from adverse party.
Q: When will civil liability arise? A: 1. 2. 3. 4. Client is prejudiced by lawyer's negligence or misconduct; Breach of fiduciary obligation; Civil liability to third persons; Libelous words in pleadings;
Q: Who is liable for the payment of costs of suits?
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A: GR: Losing client and not the lawyer is liable for costs of suit in favor of prevailing party, the lawyer not being a party-litigant. XPN: Where the lawyer insisted on clients patently unmeritorious case or interposed an appeal to delay litigation or thwart prompt satisfaction of prevailing partys just and valid claim, the court may adjudge lawyer to pay treble costs of suit. Q: When will criminal liability exist? A: A lawyer may be held criminally liable if he commits any of the following: 1. Causing prejudice to the client thru malicious breach of professional duty or thru inexcusable negligence or ignorance; 2. Revealing clients secrets learned in lawyers professional capacity thru malicious breach of professional duty or inexcusable negligence or ignorance; 3. A lawyer who has undertaken the defense of a client or has received confidential information from said client in a case may be criminally liable for undertaking defense of opposing party in same cause without consent of first client; (Art. 209, RPC) A lawyer who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with intent to cause such damage, shall use any false document may be held criminally liable therefor; (Art. 172, RPC) and A lawyer who misappropriates his clients funds may be held liable for estafa.
4.
5.
NOTE: Estafa is also committed in unauthorized practice of law.
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until further action of the Supreme Court in the case; (Sec. 16, Rule 139-B) and Probation. (IBP Guidelines)
III. DISCIPLINE OF LAWYERS 5. A. NATURE AND CHARACTERISTICS OF DISCIPLINARY ACTIONS AGAINST LAWYERS Q: What is the rationale of disciplining errant lawyers? A: Practice of law is not a natural or constitutional right, but it is in the nature of a privilege franchise. Hence, the same may be suspended or removed from the lawyer for reasons provided in the rules, law and jurisprudence. Q: What is the purpose of disciplining lawyers? 6. A: To ascertain that a lawyer still possesses those qualifications which are conditions precedent for the continuous practice of law and; to deter others from similar misconduct, to protect the court and the public from the misbehavior of its officers. Q: What is the nature of the power to discipline? A: The power to discipline a lawyer is JUDICIAL in nature and can be exercised only by the courts. It cannot be defeated by the legislative or executive departments.
Note: The power to disbar and to reinstate is an inherently judicial function (Andres v. Cabrera, SBC585, February 29, 1984)
Note: The CA and RTC cannot disbar a lawyer.
Q: What are the other sanctions and remedies? A: RALARRO 1. 2. 3. 4. 5. Restitution; Assessment of costs; Limitation upon practice; Appointment of a receiver; Requirement that a lawyer take the bar examination or professional responsibility examination; Requirement that a lawyer attend continuing education courses; and Other requirements that the highest court or disciplinary board deems consistent with the purposes of the sanctions.
7.
Q: What are the forms of disciplinary measures? A: WARCS-DIP 1. Warning an act of putting one on his guard against an impending danger, evil, consequence or penalty; Admonition a gentle or friendly reproof, mild rebuke, warning, reminder, or counseling on a fault, error or oversight; an expression of authoritative advice; Reprimand a public and formal censure or severe reproof, administered to a person at fault by his superior officer or the body to which he belongs; Censure official reprimand; Suspension temporary withholding of a lawyers right to practice his profession as a lawyer for a certain period or for an indefinite period of time: a. Definite; b. Indefinite qualified disbarment; lawyer determines for himself how long or how short his suspension shall last by proving to court that he is once again fit to resume practice of law. Disbarment it is the act of the Supreme Court of withdrawing from an attorney the right to practice law. The name of the
2.
Q: What are the powers of the Supreme Court with regard to the discipline of errant lawyers? A: WARDSIP 1. Warn; 2. Admonish; 3. Reprimand; 4. Disbar; 5. Suspend a lawyer; [Sec. 27, Rule 138, Revised Rules of Court (RRC)] 6. Interim suspension; and 7. Probation. (IBP Guidelines) Q: What about the Court of Appeals and the Regional Trial Court? A: They are also empowered to: WARSP 1. Warn; 2. Admonish; 3. Reprimand; 4. Suspend an attorney from practice for any of the causes named in Sec 27, Rule 138
3.
4. 5.
6.
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Legal Ethics discipline of lawyers

lawyer is stricken out from the Roll of Attorneys; 7. Interim Suspension it is the temporary suspension of a lawyer from the practice of law pending imposition of final discipline; Includes: a. Suspension upon conviction of a serious crime; b. Suspension when the lawyers continuing conduct is or is likely to cause immediate and serious injury to a client or public 8. Probation it is a sanction that allows a lawyer to practice law under specified conditions. (2002, 2004 Bar Question) complaints against lawyers, should be struck down as void and of no legal effect for being ultra vires. (Heirs of Falame v. Atty. Baguio, A.C. No. 6876, Mar. 7, 2008) Q: May a lawyer be suspended or disciplined for his misconduct in his private capacity? A: GR: No. XPN: if the misconduct is so GROSS as to show him to be wanting in moral character, honesty, probity and demeanor (Ducat, Jr. v. Villalon, A.C. No. 3910, June 28, 2001). Q: Atty. Gutierrez phoned Yuhico and asked for a cash loan claiming that he needed money to pay for the medical expenses of his mother who was seriously ill, and promised to pay the loan very soon. Consequently, he asked Yuhico again for a loan to pay for his wifes hospitalization and again promised to pay within a short time but failed to do so. Later, he again attempted to borrow money for his daughters licensure examination in the US Medical Board and assured Yuhico that he will pay his debts on or before a certain date but Yuhico refused to lend him the money, instead, he demanded payment of his debts. Atty. Gutierrez failed to pay which led to the filing of a complaint before the IBPCBD for non-payment of just debts. It turned out that Atty. Gutierrez was previously disbarred in the case of Huyssen v Atty. Gutierrez for gross misconduct in view of his failure to pay his debts and his issuance of worthless checks. May Atty. Gutierrez be disbarred for the second time? A: NO. The SC held that while the IBP recommended to disbar Atty. Gutierrez for the second time, we do not have double or multiple disbarment in our laws or jurisprudence and neither do we have a law mandating a minimum 5-year requirement for readmission, as cited by the IBP. Thus, while Gutierrezs infraction calls for the penalty of disbarment, they cannot disbar him anew. (Yuhico v Atty. Gutierrez, A.C. No. 8391, November 23, 2010) B. GROUNDS Q: What are the grounds for suspension and disbarment of members of the bar under the Rules of Court? A: The following are specific grounds for suspension or disbarment of a lawyer: a. Deceit; b. Malpractice;
Q: What is the nature of the disciplinary actions against lawyers? A: Administrative cases against lawyers belong to a class of their own (sui generis). They are distinct from and may proceed independently of civil and criminal cases (In re Almacen, G.R. No. L-27654
February 18, 1970; Funa, 2009).
Q: What are the main objectives of disbarment and suspension? A: To: 1. Compel the attorney to deal fairly and honestly with his clients; 2. Remove from the profession a person whose misconduct has proved him unfit to be entrusted with the duties and responsibilities belonging to the office of an attorney; 3. Punish the lawyer; 4. Set an example or a warning for the other members of the bar; 5. Safeguard the administration of justice from incompetent and dishonest lawyers; 6. Protect the public.
Note: The purpose and the nature of disbarment proceedings make the number of defenses available in civil and criminal actions inapplicable in disciplinary proceedings.
Q: Is there a prescriptive period for filing administrative complaints against lawyers? A: None. Rule VII, Section 1 of the Rules of Procedure of the CBD-IBP, which provides for a prescriptive period for the filing of administrative
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c. d. e. f. g. Grossly immoral conduct Conviction of a crime involving moral turpitude; Violation of oath of office; Willful disobedience of any lawful order of a superior court Corrupt or willful appearance as an attorney for a party to a case without authority to do so. (Sec. 27, Rule 138, RRC) Q: What is deceit? A: Deceit is a fraudulent and deceptive misrepresentation, artifice or device used by one or more persons to deceive and trick another who is ignorant of the true facts, to the prejudice and damage of the party upon which it was imposed. There must be false representation as a matter of fact. (e.g. Misappropriation of clients fund)
Note: There is deceit when the act is performed with deliberate intent (Art. 3, RPC)
Note: Kinds of grounds for the suspension and disbarment of a lawyer consist of those acts of misconduct committed: 1. Prior to admission to the bar- acts of
Malpractice misconduct prior to admission include those that indicate that at the time the lawyer took his oath, he did not possess the required qualifications for membership in the bar. Consequently, the cancellation of his license is justified.
2. After admission to the bar - those which cause loss of moral character on his part or involve violation of his duties to the court, his client, to the legal profession and to the public.
Q: What is malpractice? A: Malpractice refers to any malfeasance or dereliction of duty committed by a lawyer (Tan Tek Beng v. David, Adm. Case No. 1261, December 29 1983; Lapena,Jr., 2009)
Note: Legal malpractice consists of failure of an attorney to use such skill, prudence and diligence as a lawyer of ordinary skill and capacity commonly possess and exercise in the performance of tasks which they undertake, and when such failure proximately causes damage, it gives rise to an action in tort. (Tan Tek Beng v. David, A.C. No. 1261, Dec. 29, 1983)
Note: Disbarment and suspension of a lawyer, being the most severe forms of disciplinary sanction, should be imposed with great caution and only in those cases where the misconduct of the lawyer as an officer of the court and a member of the bar is established by clear, convincing and satisfactory proof. (Vitug v. Rongcal, A.C. No. 6313, Sept. 7, 2006) Disbarment is merited when the action is not the lawyers first ethical infraction of the same nature. (Que v. Revilla, A.C. No. 7054, Dec. 4, 2009)
Grossly Immoral Conduct Q: What is Gross Misconduct? A: Gross Misconduct is any inexcusable, shameful or flagrant unlawful conduct on the part of the person concerned in the administration of justice which is prejudicial to the rights of the parties or to the right determination of a cause, a conduct that is generally motivated by a predetermined, obstinate or intentional purpose. (Yumol Jr. v. Ferrer, Sr., A.C. No. 6585, April 21, 2005)
Q: What is Grossly Immoral Conduct?
Q: Are the grounds for disbarment exclusive? A: No. A lawyer may be removed from office or suspended from the practice of law on grounds other than those specifically provided in the law. The statutory enumeration is not to be taken as a limitation on the general power of SC to suspend or disbar a lawyer. (In Re: Puno, A.C. No. 389, Feb. 28, 1967)
Note: The Court has disbarred or suspended lawyers for reasons not found in the statute as when their acts are contrary to honesty or good morals or do not approximate the highest degree of morality and integrity expected of the members of the bar. (Sta. Maria v. Tuazon, A.C. No. 396, July 31, 1964)
A: Grossly immoral conduct is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree. (Vitug v. Rongcal, A.C. No. 6313, Sept. 7, 2006);
Note: Mere intimacy between a lawyer and a woman with no impediment to marry each other, and who voluntarily cohabited and had two children, is neither so corrupt to constitute a criminal act nor so unprincipled as to warrant disbarment or disciplinary action against the man as a member of the bar. (Arciga v. Maniwang, A.C. No. 1608, Aug. 14, 1981)
Deceit
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Conviction of a Crime Involving Moral Turpitude Q: What is Moral Turpitude? A: Moral turpitude has been defined as everything
that is done contrary to justice, honesty, modesty, or good morals, an act of baseness, vileness, or depravity in the private duties which a man owes his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman, or conduct contrary to justice, honesty modesty, or good morals. (Soriano v. Dizon, A. C. No. 6792, Jan. 25, 2006)
3.
Representing conflicting interests. (Art. 209, RPC)
Q: What are the other grounds for disciplining a lawyer? A: 1.
Non-professional misconduct GR: A lawyer may not be suspended or disbarred for misconduct in his nonprofessional or private capacity. XPN: Where such is so gross as to show him to be morally unfit for office or unworthy of privilege, the court may be justified in suspending or removing him from the Roll of Attorneys. (2005 Bar Question)
Note: The issuance of worthless checks constitutes gross misconduct as its effect transcends the private interests of the parties directly involved in the transaction and touches the interests of the community at large.
Violation of oath of office

Note: The Lawyers Oath is a solemn affirmation of the lawyers lifetime commitment to be a loyal citizen, law-abiding person, a defender of truth and justice, an advocate of the rule of law, an exemplar of loyalty a fidelity to the courts and to clients and a model to emulate both in his professional and private life. (In re: Arthur Cuevas, Jr., Bar Matter No. 810, January 27, 1998)
Q: what are the specific grounds that may constitute violation of the lawyers oath? A: The specific grounds that would constitute violation of the lawyers oath are: 1. 2. 3. 4. Commission of falsehood Instituting baseless or unfounded complaints Engaging in dilatory actions for an ulterior motive Malpractice or reprehensible conduct in dealing with the court of his client. (Lapena, Jr., 2009)
2.
Gross immorality An act of personal immorality on the part of a lawyer in his private relation with opposite sex may put his character in doubt. But to justify suspension or disbarment, the act must not only be immoral, it must be grossly immoral. (Abaigar v. Paz, A.M. No. 997, Sept. 10, 1979)
Note: Cohabitation per se is not grossly immoral. It depends on circumstances and is not necessary that there be prior conviction for an offense before lawyer may be disciplined for gross immorality. If the evidence is not sufficient to hold a lawyer liable for gross immorality, he may still be reprimanded where evidence shows failure on his part to comply with rigorous standards of conduct required from lawyers.
Corrupt or Willful Appearance as Attorney for a Party to a Case Without Authority to do so (Refer to Sanctions for Practice of Law Without Authority) Q: What are the other statutory grounds for suspension and disbarment of members of the bar? A: Other statutory grounds include: 1. Acquisition of interest in the subject matter of the litigation, either through purchase or assignment; (Art. 1491, New Civil Code) 2. Breach of professional duty, inexcusable negligence, or ignorance, or for the revelation of the clients secrets; (Art. 208, Revised Penal Code)
3.
Conviction of a crime involving moral turpitude All crimes of which fraud or deceit is an element or those inherently contrary to rules of right conduct, honesty or morality in civilized community. Promoting to violate or violating penal laws Misconduct in discharge of official duties A lawyer who holds a government office may not be disciplined as a member of the
4.
5.
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bar for misconduct in the discharge of his duties as government official. However, if the misconduct is in violation of the CPR or of his oath as a lawyer or is of such a character as to affect his qualifications as a lawyer, he may be subject to disciplinary action such as disbarment. (Collantes v. Renomeron, A.C. No. 3056, Aug. 16, 1991)
Note: This rule does not apply to impeachable officials like SC justices, members of constitutional commissions and Ombudsman because they can be removed only by impeachment.
6. 7. 8. 9.
Failing to account or misappropriating clients property; Collecting unreasonable fees; Acting without authority; Willfully appearing without being retained.
Note: Sanction: Disciplinary action
Q: What are the acts constituting breach of duties to the bar? A: 1. 2. 3. 4. 5. 6. Defaming fellow lawyers; Communicating with adverse party; Soliciting business; Advertising; Cooperating in illegal practice of law; Non-payment of IBP dues.
6. 7.
Commission of fraud or falsehood; and Misconduct as notary public
Note: Sanction: Disciplinary action Note: By applying for having himself commissioned as notary public, a lawyer assumes duties in a dual capacity, the nonperformance of which may be a ground for discipline as a member of the bar.
C. DISBARMENT PROCEEDINGS Q: What are the characteristics of disbarment proceedings? A: 1. Sui Generis a. Neither purely civil nor purely criminal, they do not involve a trial of an action or a suit, but are rather investigations by the Court into the conduct of one of its officers. b. Not a civil action because there is neither plaintiff nor respondent, and involves no private interest. The complainant is not a party and has no interest in the outcome except as all citizens have in the proper administration of justice. There is no redress for private grievance. c. Not a criminal prosecution because it is not meant as a punishment depriving him of source of livelihood but rather to ensure that those who exercise the function should be competent, honorable and reliable so that the public may repose confidence in them.
Q: What are the acts constituting breach of duties to court? A: 1. 2. 3. 4. 5. 6. 7. 8. Obstructing justice and abuse of legal process; Misleading the court; Forum shopping; Preferring false charges; Introducing false evidence; Willfully disobeying court orders and disrespecting the court; Using vicious or disrespectful language; Continuing practice after suspension.
Note: Sanction: Admonition, censure, suspension or disbarment.
Q: What are the acts constituting breach of duties to client? A: 1. 2. 3. Negligence in the performance of his duties; Employment of unlawful means; Deceit or misrepresentation to the prejudice of or as a means to defraud his client; Representing adverse interests and revealing clients secrets; Purchasing clients property in litigation;
4. 5.
Note: A disbarment proceeding may proceed regardless of interest or lack of interest of the complainant (Rayos-Ombac v. Rayos, A.C. No. 2884, January 28, 1998). However, if the complainant refuses to testify and the charges cannot then be substantiated, the court will have no alternative but to dismiss the case. (2000 Bar Question)
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2. The defense of double jeopardy cannot be availed of in a disbarment proceeding; 3. It can be initiated motu proprio by the SC or IBP. It can be initiated without a complaint; 4. It is imprescriptible; 5. Conducted confidentially; 6. It can proceed regardless of the interest or the lack thereof on the part of the complainant; and 7. It in itself constitutes due process of law. 8. Whatever has been decided in a disbarment case cannot be a source of right that may be enforced in another action; 9. In pari delicto rule not applicable; 10. No prejudicial question in disbarment proceedings; 11. Penalty in a disbarment case cannot be in the alternative; and 12. Monetary claims cannot be granted except restitution and return of monies and properties of the client given in the course of the lawyer-client relationship. Q: What is the three-fold purpose confidentiality of disbarment proceedings? A: 1. To enable the court to make its investigation free from extraneous influence or interference; To protect the personal and professional reputation of attorneys from baseless charges of disgruntled, vindictive and irresponsible persons or clients by prohibiting publication of such charges pending their final resolution (Albano v. Coloma, A.C. No. 528, Oct. 11, 1967); To deter the press from publishing charges or proceedings based thereon for even a verbatim reproduction of the complaint against an attorney in the newspaper may be actionable. (1991 Bar Question) of A: 1. 2. 3. Supreme Court; IBP through its Commission on Bar Discipline or authorized investigator; and Office of the Solicitor General.
Q: What are the purposes of disbarment as a means of disciplining erring lawyers? A: The purposes of disbarment are: 1. To protect the public 2. To protect and preserve profession; and
the
legal
Note: The reason is because it is the court which admits an attorney to the bar and the court requires for such admission the possession of a good moral character. Disbarment is necessary so that respectability of the bar will be maintained. (1991 Bar Question)
3.
To compel the lawyer to comply with his duties and obligations under the CPR.
Q: Who has the burden of proof? A: The burden of proof is upon the complainant and the SC will exercise its disciplinary power only if the complainant establishes his case by the required quantum of proof which is clear, convincing and satisfactory evidence. (Aquino v. Mangaoang, A.C. No. 4934, Mar. 17, 2004)
Note: In the absence of contrary proof, the presumption is that the lawyer is innocent of the charges, and has performed his duty as an officer of the court in accordance with his oath, and the disbarment case should be dismissed. However, the court can still impose conditions despite dismissal of disciplinary action against an erring lawyer, if the facts so warrant. In the event the lawyer fails to comply with such condition, the court may suspend or disbar him for disobedience of its order. A lawyer who has been suspended or disbarred cannot practice law without being held liable for contempt of court. The suspended lawyer may be disbarred for violation of the suspension order. Such judgment however does not prohibit pro se practice. (Geeslin v. Navarro, A.C. No. 2033, May 1990).
2.
3.
Note: The confidentiality of the proceedings is a privilege which may be waived by the lawyer in whom and for the protection of whose personal and professional reputation it is vested, as by presenting the testimony in a disbarment case or using it as impeaching evidence in a civil suit. (Villalon v. IAC, G.R. No. L-73751, Sept. 24, 1986)
a. Procedure for Disbarment BAR MATTER NO. 1960 (May 1, 2000) AMENDMENT OF SECTION 1, RULE 139-B OF THE REVISED RULES OF COURT
Q: What are the offices authorized to investigate disbarment cases?
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Q: How is a disbarment proceeding instituted? A: Proceedings for disbarment, suspension or discipline of attorneys may be taken by the: 1. 2. Supreme Court motu proprio; or Integrated Bar of the Philippines (IBP) upon the verified complaint of any person. The complaint shall state clearly and concisely the facts complained of and shall be supported by affidavits of persons having personal knowledge of the facts therein alleged and/or by such documents as may substantiate said facts. Disbarment Proceedings Before the IBP The IBP Board of Governors may: 1. 2. 3. 4. Motu proprio; or Upon referral by the Supreme Court; or By a Chapter Board of Officers; or At the instance of any person, initiate and prosecute proper charges against erring attorneys including those in the government service; Provided, however, that all charges against Justices of the Court of Tax Appeals and the Sandiganbayan, and Judges of the Court of Tax Appeals and lower courts, even if lawyers are jointly charged with them, shall be filed with the Supreme Court; Provided, further, that charges filed against Justices and Judges before the IBP, including those filed prior to their appointment in the Judiciary, shall immediately be forwarded to the Supreme Court for disposition and adjudication. requiring him to answer within 15 days from service. 3. The respondent shall file a verified answer containing 6 copies; after receipt of the answer or lapse of the period to do so, the Supreme Court, may, motu proprio or at the instance of the IBP Board of Governors, upon recommendation by the investigator, suspend an attorney from practice, for any of the causes under Rule 138, Sec. 27, during the pendency of the investigation After joinder of the issues or failure to answer, the respondent shall be given full opportunity to defend himself. But if the respondent fails to appear to defend himself in spite of notice, the investigator may proceed ex parte. The investigation shall be terminated within 3 months from commencement which period may be extended. The investigator shall make a report to the Board of Governors within 30 days from termination of the investigation which report shall contain his findings and recommendations together with the evidence. The Board of Governors shall have the power to review the decision of the investigator. Its decision shall be promulgated within a period not exceeding 30 days from the next meeting of the Board following the submission of the report of the investigator. If the decision is a finding of guilt of the charges, the IBP Board of Governors shall issue a resolution setting forth its findings and recommendations which shall be transmitted to the Supreme Court for final action together with the record. If the decision is for exoneration, or if the sanction is less than suspension or dismissal, the Board shall issue a decision exonerating the respondent of imposing a lesser sanction. The resolution exonerating the respondent shall be considered as terminating the case unless upon petition of the complainant or other interested party filed with the Supreme Court within 15 days from notice of the Boards decision. Resolution of the Court En Banc dated June 17, 2008 B.M. No. 1755
4.
5.
6.
7.
"Six (6) copies of the verified complaint shall be filed with the Secretary of the IBP or the Secretary of any of its chapters who shall forthwith transmit the same to the IBP Board of Governors for assignment to an investigator. (Sec. 1, third par., Rule 139-B, RRC) Procedural Steps for Disbarment in the IBP: 1. The Board of Governors shall appoint from among the IBP members an investigator or when special circumstances so warrant, a panel of 3 investigators to investigate the complaint; If the complaint is meritorious, the respondent shall be served with a copy
2.
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(Re: Rules of Procedure of the Commission on Bar Discipline) Q: Is a motion for reconsideration allowed? A: It depends. 1. A party can no longer file a motion for reconsideration of any order or resolution of the Investigating Commissioner, such motion being a prohibited pleading. 2. Regarding the issue of whether a motion for reconsideration of a decision or resolution of the Board of Governors (BOG) can be entertained, an aggrieved party can file said motion with the BOG within fifteen (15) days from notice of receipt thereof by said party. In case a decision is rendered by the BOG that exonerates the respondent or imposes a sanction less than suspension or disbarment, the aggrieved party can file a motion for reconsideration within the 15-day period from notice. If the motion is denied, said party can file a petition for a review under Rule 45 of the Rules of Court with the Supreme Court within fifteen (15) days from notice of the resolution resolving the motion. If no motion for reconsideration is filed, the decision shall become final and executory and a copy of said decision shall be furnished the Supreme Court. If the imposable penalty is suspension from the practice of law or disbarment, the BOG shall issue a resolution setting forth its findings and recommendations. The aggrieved party can file a motion for reconsideration of said resolution with the BOG within fifteen (15) days from notice. The BOG shall first resolve the incident and shall thereafter elevate the assailed resolution with the entire case records to the Supreme Court for final action. If the 15-day period lapses without any motion for reconsideration having been filed, then the BOG shall likewise transmit to this Court the resolution with the entire case records for appropriate action.
Note: Lawyers must update their records with the IBP by informing the IBP National Office or their respective chapters of any change in office or residential address and other contact details. In case such change is not duly updated, service of notice on the office or residential address appearing in the records of the IBP National Office shall constitute sufficient notice to a lawyer for purposes of administrative proceedings against him. (Keld Stemmerik v. Atty. Leonuel Mas, A.C. No. 8010, June 16, 2009)
Disbarment Proceedings Before the Supreme Court 1. In proceedings initiated motu proprio by the Supreme Court or in other proceeding when the interest of justice so requires, the Supreme Court may refer the case for investigation to the Solicitor General or to any officer of the Supreme Court or judge of a lower court, in which case the investigation shall proceed in the same manner provided in Sections 6 to 11 of Rule 139-B, RRC, save that the review of the report of investigation shall be conducted directly by the Supreme Court (Sec. 13, Rule 139-B, RRC)
Note: Reference of the Court to the IBP of complaints against lawyers is not mandatory (Zaldivar v. Sandiganbayan, G.R. Nos. 79590707; Zaldivar v. Gonzales, G.R. No. 80578, October 7,1988). Note: Reference of complaints to the IBP is not an exclusive procedure under Rule 139-B, RRC. The Court may conduct disciplinary proceedings without the intervention of the IBP by referring cases for investigation to the Solicitor General or to any officer of the Supreme Court or judge of a lower court. In such case, the report or recommendation of the investigating official shall be reviewed directly by the Supreme Court. (Bautista v. Gonzales, A.M. No. 1626, February 12,1990; Funa, 2009)
3.
4.
2.
Based upon the evidence adduced at the investigation, the Solicitor General or other Investigator designated by the Supreme Court a report containing his findings of fact and recommendations together with the record and all the evidence presented in the investigation for the final action of the Supreme Court. (Sec. 14, Rule 139-B, RRC)
Q: Atty. Narags spouse filed a petition for disbarment because her husband courted one of his students, maintained the said student as a mistress and had children with her. On the other hand, Atty. Narag claimed that his wife was a possessive, jealous woman who abused him and filed the complaint against him out of spite. Atty. Narag, however, failed to refute the testimony given against him. His actions were of public knowledge. Is Atty. Narags disbarment appropriate?
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A: Yes, Atty. Narag failed to prove his innocence because he failed to refute the testimony given against him and it was proved that his actions were of public knowledge and brought disrepute and suffering to his wife and children. Good moral character is a continuing qualification required of every member of the bar. Thus, when a lawyer fails to meet the exacting standard of moral integrity, the Supreme Court may withdraw his or her privilege to practice law. When a lawyer is found guilty of gross immoral conduct, he may be suspended or disbarred. As a lawyer, one must not only refrain from adulterous relationships but must not behave in a way that scandalizes the public by creating a belief that he is flouting those moral standards. (Narag v. Atty. Narag, A.C. No. 3405, June 29, 1998) Q: What is the effect of a lawyers death during pendency of disciplinary action against him? A: 1. 2. Renders the action moot and academic, but The Court may still resolve the case on its merit in order to clear publicly the name of the lawyer.
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PROCEDURE FOR DISBARMENT OR DISCIPLINE OF ATTONEYS BY THE SUPREME COURT MOTU PROPRIO (Rule 139-B, RRC)
Supreme Court shall refer the case to an investigator, who may either be: 1. 2. 3. Solicitor General, Any officer of the SC, or Any judge of a lower court
Notify Respondent
RESPONDENTS VERIFIED ANSWER (Must be filed within 15 days from service) INVESTIGATION (Terminate within 3 months)
REPORT TO SUPREME COURT (to be submitted not later than 30 days from investigations termination) REPORT MUST CONTAIN THE INVESTIGATORS: 1. 2. Findings of fact Recommendations SUPREME COURT FOR REVIEW or JUDGMENT
Note: An investigating judge cannot dismiss a case. The investigating judges authority is only to investigate, make a report and recommendation on the case to be submitted to the SC for final determination. (Garciano v. Sebastian, A.M. MTJ-88-160, Mar. 30, 1994)
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PROCEDURE FOR DISBARMENT OR DISCIPLINE OF ATTORNEYS BY THE IBP (Rule 139-B, RRC)
VERIFIED COMPLAINT TO THE IBP BY ANY PERSON Complaint must be: In writing; State facts complained of; and Supported by affidavits / documents
IBP Motu Proprio (Committee on Bar Discipline through National Grievance Investigator)
1. 2. 3.
Shall appoint an investigator / panel of 3 investigators and notify respondent
RECOMMEND DISMISSALIF NOT MERITORIOUS
IF MERITORIOUS, RESPONDENTS VERIFIED ANSWER (Must be filed within 15 days from service)
DISMISSAL BY BOARD OF GOVERNORS (should be promulgated within a period not exceeding 30 days from the next meeting of the board following the submittal of the investigators report)
INVESTIGATION (terminate within 3 months) 1. 2. 3. Investigator may issue subpoenas and administer oaths, Provide respondent with opportunity to be heard, May proceed with investigation ex parte should respondent fail to appear.
BOARD OF GOVERNORS FOR REVIEW (issues a Resolution Should be promulgated within a period not exceeding 30 days from the next meeting of the board following the submittal of the Investigators Report.)
REPORT TO BOARD OF GOVERNORS (Submitted not later than 30 days from termination of investigation) containing: Findings of facts Recommendations
ISSUE DECISION IF: Exonerated Sanction is less than suspension / disbarment (admonition, reprimand, or fine)
SUPREME COURT FOR JUDGMENT
The case shall be deemed terminated unless upon petition of the complainant or other interested party filed with the Supreme Court within fifteen (15) days from notice of the Board's resolution, the Supreme Court orders otherwise.
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Q: What is the effect of the desistance, withdrawal of complaint or non-appearance of complainant in disbarment proceedings? A: The desistance or the withdrawal of the complainant of the charges against a judge/lawyer does not deprive the court of the authority to proceed to determine the matter. Nor does it necessarily result in the dismissal of the complaint except when, as a consequence of the withdrawal or desistance no evidence is adduced to prove the charges. Q: Is the doctrine of res ipsa loquitur (the thing speaks for itself) applicable in cases of dismissal of judges or disbarment of lawyers? A: Yes. This principle or doctrine applies to both judges and lawyers. Judges had been dismissed from the service without need of a formal investigation because based on the records, the gross misconduct or inefficiency of judges clearly appears. (Uy v. Mercado, A.M. No. R-368-MTJ, Sept. 30, 1987) The same principle applies to lawyers. Thus, where on the basis of the lawyers comment or answer to show a show-cause order of SC, it appears that the lawyer has so conducted himself in a manner which exhibits his blatant disrespect to the court, or his want of good moral character or his violation of the attorneys oath, the lawyer may be suspended or disbarred without need of trial-type proceeding. What counts is that the lawyer has been given the opportunity to air his side. (Prudential Bank v. Castro, A.M. No. 2756, June 5, 1986) (1996, 2003 Bar Question) b. Defenses
Note: The extent of disciplinary action depends on the attendance of mitigating or aggravating circumstances.
5.
6. 7. 8. 9.
10.
11. 12. 13. 14. 15. 16. 17.
Lack of Intention to slight or offend the Court (Rheem of the Philippines, Inc. v. Ferrer, G.R. No. L-22979, Jan. 27, 1967); Absence of prior disciplinary record; Absence of dishonest or selfish motive; Personal or emotional problems; Timely good faith effort to make restitution or to rectify consequences of misconduct; Full and free disclosure to disciplinary board or cooperative attitude toward the proceedings; Character or reputation; Physical or mental disability or impairment; Delay in disciplinary proceedings; Interim rehabilitation; Imposition of other penalties or sanctions; Remorse; and Remoteness of prior offenses. (IBP Guidelines 9.32)
Note: Disbarment should not be decreed where any punishment less severe such as reprimand, suspension or fine would accomplish the end desired. (Amaya v. Tecson, A.C. No. 5996, Feb. 7, 2005)
Q: What are the aggravating circumstances in disbarment? A: 1. Prior disciplinary offenses; 2. Dishonest or selfish motives; 3. A pattern of misconduct; 4. Multiple offenses; 5. Bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; 6. Submission of false evidence, false statements, or other deceptive practices during the disciplinary process; 7. Refusal to acknowledge wrongful nature of conduct; 8. Vulnerability of victim; 9. Substantial experience in the practice of law; and 10. Indifference to making restitution. (IBP Guidelines 9.22) Q: What are the instances that are neither aggravating nor mitigating? A: 1. 2. Forced or compelled restitution; Agreeing to the clients demand for certain improper behavior or result;
Q: What are the mitigating circumstances in disbarment? A: 1. Good faith in the acquisition of a property of the client subject of litigation (In Re: Ruste, A.M. No. 632, June 27, 1940); Inexperience of the lawyer (Munoz v. People, G.R. No. L-33672, Sept. 28, 1973); Age (Santos v. Tan, A.C. No. 2697, Apr. 19, 1991); Apology (Munoz v. People, G.R. No. L33672, Sept. 28, 1973);
2. 3. 4.
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3. 4. 5. 6. Withdrawal of complaint against the lawyer; Resignation prior to completion of disciplinary proceedings; Complainants recommendation as to sanctions; or Failure of injured client to complain. (IBP Guideline 9.4) Q: Is a lawyer suspended from the practice of law in another country automatically results in his suspension or disbarment in the Philippines? A: No. The acts which led to his suspension in another country, are mere grounds for disbarment or suspension in this jurisdiction, and only if the basis of the foreign courts action includes any of the grounds for disbarment or suspension in this jurisdiction. (In re: Suspension from the practice of law in the territory of Guam of Atty. Maquera, A.M. No. 793, July 30, 2004) (2002, 2006 Bar Question) Q: Atty. LA is a member of the Philippine Bar and the California Bar in the United States. For willful disobedience of a lawful order of a Superior Court in Los Angeles, Atty. LA was suspended from the practice of law in California for one (1) year. May his suspension abroad be considered a ground for disciplinary action against Atty. LA in the Philippines? Why? A: The suspension of Atty. LA from the practice of law abroad may be considered as a ground for disciplinary action here if such suspension was based on one of the grounds for disbarment in the Philippines or shows a loss of his good moral character, a qualification he has to maintain in order to remain a member of the Philippine Bar. (2002 Bar Question)
Q: What are the guidelines to be observed in the matter of the lifting of an order suspending a lawyer from the practice of law? A: 1. Upon the expiration of the period of suspension, respondent shall file a Sworn Statement with the Court, through the Office of the Bar Confidant, stating therein that he or she has desisted from the practice of law and has not appeared in any court during the period of his or her suspension; Copies of the Sworn Statement shall be furnished to the Local Chapter of the IBP and to the Executive Judge of the courts where respondent has pending cases handled by him or her, and/or where he or she has appeared as counsel; and The Sworn Statement shall be considered as proof of respondents compliance with the order of suspension;
2.
3.
D. DISCIPLINE OF FILIPINO LAWYERS PRACTICE IN FOREIGN JURISDICTIONS Q: What is the effect in the Philippines of the disbarment or suspension of a Filipino lawyer in a foreign country? A: If the Filipino lawyer is disbarred or suspended from the practice of law by a competent court or disciplinary agency in a foreign jurisdiction where he has been admitted as an attorney, and a ground therefor includes any of the acts enumerated in Section 27, Rule 138 of the RRC, such disbarment or suspension is a ground for his disbarment or suspension in the Philippines.(Lapena, 2009)
Note: The judgment, resolution or order of the foreign court or disciplinary agency shall be prima facie evidence of the ground for disbarment or suspension. (SC Resolution date 21 February 1992 amending Sec. 27,Rule 138, RRC)
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Q: Is the lifting of the suspension order automatic? A: No. The lifting of a lawyers suspension is not automatic upon the end of the period stated in the Courts decision, and an order from the Court lifting the suspension at the end of the period is necessary in order to enable [him] to resume the practice of his profession. (J.K. Mercado and Sons Agricultural Enterprises, Inc. et al. v. Atty. de Vera, et al. and Atty. de Vera v. Atty. Encanto, et al.) Thus, according to the OBC, a suspended lawyer must first present proof(s) of his compliance by submitting certifications from the Integrated Bar of the Philippines and from the Executive Judge that he has indeed desisted from the practice of law during the period of suspension. Thereafter, the Court, after evaluation, and upon a favorable recommendation from the OBC, will issue a resolution lifting the order of suspension and thus allow him to resume the practice of law. (Maniago v. Atty. De Dios, A.C. No. 7472, March 30, 2010) Q: What are the guidelines to be observed in case of lifting an order suspending a lawyer from the practice of law? A: The following guidelines were issued by the Supreme Court, the same to be observed in the matter of the lifting of an order suspending a lawyer from the practice of law: 1. After a finding that respondent lawyer must be suspended from the practice of law, the Court shall render a decision imposing the penalty; Unless the Court explicitly states that the decision is immediately executory upon receipt thereof, respondent has 15 days within which to file a motion for reconsideration thereof. The denial of said motion shall render the decision final and executory; Upon the expiration of the period of suspension, respondent shall file a Sworn Statement with the Court, through the Office of the Bar Confidant, stating therein that he or she has desisted from the practice of law and has not appeared in any court during the period of his or her suspension;
IV. READMISSION TO THE BAR
Q: What is reinstatement? A: It is the restoration in disbarment proceedings to a disbarred lawyer the privilege to practice law.
Note: The power of the Supreme Court to reinstate is based on its constitutional prerogative to promulgate rules on the admission of applicants to the practice of law. (Sec. 5[5], Art. VIII, 1987 Constitution)
Q: What are the conditions in reinstatement? A: The applicant must, like a candidate for admission to the Bar, satisfy the Court that he is a person of good moral character a fit and proper person to practice law. A. READMISSION TO THE BAR OF LAWYERS WHO HAVE BEEN SUSPENDED Q: Raul Gonzales was found guilty of both contempt of court in facie curiae and gross misconduct as an officer of court and member of the bar. For this, he was suspended indefinitely. After more than 4 years from his suspension, Gonzales filed an ex-parte motion to lift his suspension from the practice of law, alleging that he gave free legal aid services by paying lawyers to do the same as he could not personally represent said clients; pursued civic work for the poor; brought honor to the country by delivering a paper in Switzerland; that he has a long record in the service of human rights and the rule of law; his suspension of 51 months has been the longest so far; states his profound regrets for the inconvenience which he has caused to the Court; sincerely reiterates his respect to the institution as he reiterates his oath to conduct himself as a lawyer. May his suspension be lifted? A: Yes. The Gonzales contrition, so noticeably absent in his earlier pleadings, has washed clean the offense of his disrespect. His remorse has soften his arrogance and made up for his misconduct. Gonzales suspension has given him ample time and opportunity to amend his erring ways, rehabilitate himself, and thus, prove himself worthy once again to enjoy the privileges of membership of the Bar. His motion was granted. (Zaldivar v. Gonzales, G.R. Nos. 79690707, April 7, 1993)
2.
3.
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4. Copies of the Sworn Statement shall be furnished to the Local Chapter of the IBP and to the Executive Judge of the courts where respondent has pending cases handled by him or her, and/or where he or she has appeared as counsel; The Sworn Statement shall be considered as proof of respondents compliance with the order of suspension; Any finding or report contrary to the statements made by the lawyer under oath shall be a ground for the imposition of a more severe punishment, or disbarment, as may be warranted. resulting from a previous disbarment (Cui v. Cui, G.R. No. L-18727, Aug. 31, 1964); Recognition of moral rehabilitation and mental fitness to practice law; Lawyer shall be subject to same law, rules and regulations as those applicable to any other lawyer; and Lawyer must comply with the conditions imposed on his readmission.
2. 3.
5.
4.
6.
Q: Is a disbarred lawyer by reason of conviction of a crime automatically reinstated to the practice of law upon being pardoned by the President? A: No. To be reinstated, there is still a need for the filing of an appropriate petition with the Supreme Court. (In re: Rovero, A.M. No. 126, Dec. 29, 1980) Q: What is the effect if during the pendency of a disbarment proceeding, the erring lawyer was granted executive pardon? A: If during the pendency of a disbarment proceeding the respondent was granted executive pardon, the dismissal of the case on that sole basis will depend on whether the executive pardon is absolute or conditional. 1. 2. Absolute or unconditional pardon - the disbarment case will be dismissed. Conditional pardon - the disbarment case will not be dismissed on the basis thereof.
B. READMISSION TO THE BAR OF LAWYERS WHO HAVE BEEN DISBARRED Q: What must the Supreme Court take into consideration in reinstatement? A: 1. 2. 3. The applicants character and standing prior to the disbarment; The nature and character of the charge for which he was disbarred; His conduct subsequent to the disbarment, and the time that has elapsed between the disbarment and the application for reinstatement; (Prudential Bank v. Benjamin Grecia, A.C. No. 2756, Dec. 18, 1990) His efficient government service; (In re: Adriatico, G.R. No. L-2532, Nov. 17, 1910) Applicants appreciation of the significance of his dereliction and his assurance that he now possesses the requisite probity and integrity; and Favorable endorsement of the IBP and pleas of his loved ones. (Yap Tan v. Sabandal, B.M. No. 144, Feb. 24, 1989)
4. 5.
6.
Q: X filed proceedings for disbarment against his lawyer, Atty. C, following the latters conviction for estafa for misappropriating funds belonging to his client (X). While the proceedings for disbarment was pending, the President granted absolute pardon in favor of Atty. C. Atty. C, then, moved for the dismissal of the disbarment case. Should the motion be granted? A: An absolute pardon by the President is one that operates to wipe out the conviction as well as the offense itself. The grant thereof to a lawyer is a bar to a proceeding for disbarment against him, if such proceeding is based solely on the fact of such conviction. (In re: Parcasio, A.C. No. 100, Feb. 18, 1976) But where the proceeding to disbar is founded on the professional misconduct involved in the transaction which culminated in his conviction, the effect of the pardon is only to relieve him of the penal consequences of his act and does not operate as a bar to the disbarment proceeding,
Note: Whether or not the applicant shall be reinstated rests on the discretion of the court. (Prudential Bank v. Benjamin Grecia, A.C. No. 2756, Dec. 18, 1990) The court may require applicant for reinstatement to enroll in and pass the required fourth year review classes in a recognized law school. (Cui v. Cui, In Re: Resian A.C. No. 270, Mar. 1974)
Q: What is the effect of reinstatement? A: 1. Reinstatement to the roll of attorneys wipes out the restrictions and disabilities
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Legal Ethics - Readmission to the Bar

inasmuch as the criminal acts may nevertheless constitute proof that the attorney does not possess good moral character. (In re: Lontok, 43 Phil. 293, Apr. 7, 1922)
Note: In the light of recent court pronouncements that a lawyer may be disciplined even for nonprofessional misconduct, one may argue that a lawyer convicted of a crime involving moral turpitude, and subsequently receives absolute pardon, may still be proceeded against under the Code of Professional Responsibility even if the acts of which he was found guilty did not involve professional misconduct (A modification of In Re Lontok, supra). The ground for the petition for disciplinary action under the Code must, however, not be founded alone on the conviction but must be based on the acts committed by the lawyer which rendered him morally unfit to be a member of the bar. (Aguirre, Legal and Judicial Ethics. A Pre-week Reviewer, 2006 Edition)
C. READMISSION TO THE BAR OF LAWYERS WHO HAVE BEEN REPATRIATED Q: What are the effects of loss and reacquisition of Philippine citizenship? A: The loss of Philippine citizenship ipso jure terminates the privilege to practice law in the Philippines. However, pursuant to R.A. No. 9225 of the Citizenship Retention and Reacquisition Act of 2003, Filipino lawyer who becomes a citizen of another country is deemed never to have lost his Philippine citizenship IF HE REACQUIRES IT IN ACCORDANCE WITH R.A. NO. 9225. Nevertheless, his right to practice law DOES NOT AUTOMATICALLY ACCRUE. He must first secure authority from the Supreme Court upon compliance with the following conditions: 1. 2. 3. The updating and payment in full of annual membership dues in the IBP; Payment of professional tax; Completion of at least 36 credit hours of mandatory continuing legal educations; and Retaking of the lawyers oath
Q: X, a member of the Bar, was charged with and found guilty of estafa, for which he was sentenced to suffer imprisonment and to indemnify the offended party for the amount Involved. Not having taken an appeal from the judgment of conviction, upon finality thereof he was taken into custody to serve sentence. A month after he was incarcerated, he was granted pardon by the Chief Executive on condition that he would not commit another offense during the unserved portion of his prison sentence. Soon after Xs release from custody after being pardoned, the offended party in the criminal case filed a Complaint for Disbarment against X in the Supreme Court. X set up the defense that having been pardoned by the Chief Executive for which reason he was released from imprisonment, he may not be disbarred from the practice of law anymore. Is Xs contention tenable? A: Xs contention is not tenable. He was granted only a conditional pardon. Such conditional pardon merely relieved him of the penal consequences of his act but did not operate as a bar to his disbarment. Such pardon does not reach the offense itself. Hence, it does not constitute a bar to his disbarment. (In re Gutierrez, A.C. No. L-363, July 31, 1962; In re Avancena, A.C. No. 407, August 15, 1967). Furthermore, the acts of X leading to his conviction may be used to show that he does not possess the necessary requirement of good moral character for continued membership in the Bar (In re Valloces, A.C. No. 439, September 30, 1982). (1999 Bar Question)
4.
Q: Dacanay practiced law until he migrated to Canada to seek medical attention to his ailments. He subsequently applied for Canadian citizenship to avail of Canadas free medical aid program. His application was approved and he became a Canadian citizen. Dacanay later on reacquired his Philippine citizenship by virtue of R.A. 9225. Did Dacanay lose his membership in the Philippine bar when he gave up his Philippine citizenship? Can he automatically practice law upon reacquiring Filipino citizenship? A: The Constitution provides that the practice of all professions in the Philippines shall be limited to Filipino citizens save in cases prescribed by law. Since Filipino citizenship is a requirement for admission to the bar, loss thereof terminates membership in the Philippine bar and, consequently, the privilege to engage in the practice of law. In other words, the loss of Filipino citizenship ipso jure terminates the privilege to practice law in the Philippines. The practice of law is a privilege denied to foreigners. The exception is when Filipino citizenship is lost by reason of naturalization as a citizen of another country but subsequently reacquired pursuant to
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R.A. 9225. This is because all Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of R.A. 9225. Therefore, a Filipino lawyer who becomes a citizen of another country is deemed never to have lost his Philippine citizenship if he reacquires it in accordance with R.A. 9225. Although he is also deemed never to have terminated his membership in the Philippine bar, no automatic right to resume law practice accrues. Before a lawyer who reacquires Filipino citizenship pursuant to R.A. 9225 can resume his law practice, he must first secure from the SC the authority to do so, conditioned on: 1. 2. 3. The updating and payment in full of the annual membership dues in the IBP; The payment of professional tax; The completion of at least 36 credit hours of mandatory continuing legal education, this is specially significant to refresh the applicant/petitioners knowledge of Philippine laws and update him of legal developments; and
The retaking of the lawyers oath which will not only remind him of his duties and responsibilities as a lawyer and as an officer of the Court, but also renew his pledge to maintain allegiance to the Republic of the Philippines. (Petition for Leave to Resume Practice of Law of Benjamin Dacanay, B.M. No. 1678, Dec. 17, 2007)
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Legal Ethics Notarial Practice

Q: What are the classes of credits?
V. MANDATORY CONTINUING LEGAL EDUCATION (MCLE)
A: 1. Participatory credit Attending approved education activities like seminars, conventions, symposia, and the like; speaking or lecturing, or assigned as panelist, reactor, or commentator, etc. in approved education activities; teaching in law school or lecturing in bar review classes. Non-participatory Preparing, as author or co-author, written materials (article, book or book review) which contribute to the legal education of the author member, which were not prepared in the ordinary course of his practice or employment; editing a law book, law journal or legal newsletter. C. COMPLIANCE Q: What constitutes non-compliance of MCLE? A: 1. Failure to complete education requirement within the compliance period; Failure to provide attestation of compliance or exemption; Failure to provide satisfactory evidence of compliance (including evidence of exempt status) within the prescribed period; Failure to satisfy the education requirement and furnish evidence of such compliance within 60 days from receipt of non-compliance notice; Failure to pay non-compliance fee within the prescribed period; or Any other act or omission analogous to any of the foregoing or intended to circumvent or evade compliance with the MCLE requirements.
A. PURPOSE Q: What is the purpose of Bar Matter 850 MCLE? A: MCLE is required of members of the IBP to ensure that throughout their career, they keep abreast with law and jurisprudence, maintain the ethics of the profession and enhance the standards of the practice of law. (2003, 2006 Bar Questions) Q: What is the Composition of the Committee on Mandatory Continuing Legal Education? A: 1. Composition: a. Retired Justice of the SC Chairman, nominated by the SC b. IBP National President Vice-Chair c. 3 other members nominated by the Philippine Judicial Academy, UP Law Center and Association of Law Professors, respectively. Members are of proven probity and integrity Compensation as may be determined by the SC. The initial terms of each of the 3 members shall be 5, 4, and 3 years respectively. B. REQUIREMENTS Q: What are the requirements of completion of MCLE? A: Requirements of completion of MCLE: Members of the IBP, unless exempted under Rule 7, shall complete every 3 years at least 36 hours of continuing legal education activities. The 36 hours shall be divided as follows: 1. 2. 3. 4. 5. 6. 7. 6 hours legal ethics 4 hours trial and pretrial skills 5 hours alternative dispute resolution 9 hours updates on substantive and procedural laws and jurisprudence 4 hours legal writing and oral advocacy 2 hours international law and international conventions Remaining 6 hours such other subjects as may be prescribed by the Committee on MCLE. 5. 6.
2.
2. 3. 4.
2. 3.
4.
Note: Members failing to comply will receive a NonCompliance Notice stating the specific deficiency and will be given 60 days from date of notification to file a response.
D. EXEMPTIONS Q: Who are the persons exempted from the MCLE? A: 1. The President, Vice-President and the Secretaries and Undersecretaries of Executive Departments;
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2. Senators and Members of the House of Representatives; 3. The Chief Justice and Associate Justices of the Supreme Court, incumbent and retired members of the judiciary, incumbent members of Judicial Bar Council, incumbent members of the MCLE Committee, incumbent court lawyers who have availed of the Philippine Judicial Academy programs of continuing judicial education (Amendment to Bar Matter 850, Resolution of the Court En Banc, July 13, 2004); 4. The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the Dept. of Justice; 5. The Solicitor General and the Assistant Solicitor General; 6. The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel; 7. The Chairman and Members of the Constitutional Commissions; 8. The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsmen and the Special Prosecutor of the Office of the Ombudsman; 9. Heads of government agencies exercising quasi-judicial functions; 10. Incumbent deans, bar reviewers and professors of law who have teaching experience for at least 10 years in accredited law schools; 11. The Chancellor, Vice-Chancellor and members of the Corps of Professional and Professorial Lecturers of the Philippine Judicial Academy; and 12. Governors and Mayors. (2006 Bar Question) Other parties exempted: 1. Those who are not in law practice, private or public; 2. Those who have retired from law practice with the approval of the IBP Board of Governors. Q: May a member of the bar not included in the enumeration ask for exemption? A: Yes, if there is a good cause for exemption from or modification of requirement. A member may file a verified request setting forth good cause for exemption (such as physical disability, illness, post-graduate study abroad, proven expertise in law, etc.) from compliance with or modification of any of the requirements, including an extension of time for compliance, in accordance with procedure to be established by the Committee on MCLE.
Note: Applications for exemption from or modification of the MCLE requirement shall be under oath and supported by documents.
E. SANCTIONS Q: What are the consequences of noncompliance? A: A member who fails to comply with the requirements after the 60-day period shall be listed as delinquent member by the IBP Board of Governors upon recommendation of the Committee on MCLE.
Note: The listing as a delinquent member is administrative in nature but shall be made with notice and hearing by the Committee on MCLE. B.M. No. 1922, which took effect on January 1, 2009, requires practicing members of the bar to indicate in all pleadings filed before the courts or quasi-judicial bodies, the number and date of issue of their MCLE Certificate of Compliance or Certificate of Exemption, as may be applicable, for the immediately preceding compliance period. Failure to disclose the required information would cause the dismissal of the case and the expunction of the pleadings from the records.
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Q: Is a lawyer always a notary public?
VI. NOTARIAL PRACTICE (1996, 2005, 2007 Bar Question)
A: No. Not every member of the Bar is a notary public because a lawyer requires a commission of appointment to be designated as a notary public.
Note: Notarization is not an empty, meaningless, routinary act. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public. For this reason notaries public must observe with utmost care the basic requirements in the performance of their duties. Otherwise, the confidence of the public in the integrity of this form of conveyance would be undermined. (Vda. De Rosales v. Ramos, A.C. No. 5645, July 2, 2002)
Q: What is the purpose of notarial law (A.M. No. 02-8-13-SC)? A: 1. 2. 3. To promote, serve, and protect public interest; To simplify, clarify, and modernize the rules governing notaries public; and To foster ethical conduct among notaries public. (Sec. 2, Rule I, A.M. No. 02-8-13-SC) A. QUALIFICATIONS OF NOTARY PUBLIC Q: Who is a notary public? A: A person appointed by the court whose duty is to attest to the genuineness of any deed or writing in order to render them available as evidence of facts stated therein and who is authorized by the statute to administer various oaths.
Note: Notary Public" and "Notary" refer to any person commissioned to perform official acts under the rules on Notarial Practice. (Sec. 9, Rule II, A.M. No. 02-8-13-SC)
Q: What are the 2 kinds of duties imposed by law to a notary public? A: 1. 2. Execution of formalities required by law; and Verification of the capacity and identity of the parties as well as the legality of the act executed.
Q: What are the duties of a notary public? A: 1. 2. To keep a notarial register; To make the proper entry or entries in his notarial register touching his notarial acts in the manner required by the law; To send the copy of the entries to the proper clerk of court within the first 10 days of the month next following; To affix to acknowledgments the date of expiration of his commission, as required by law; To forward his notarial register, when filled, to the proper clerk of court; To make report, within reasonable time to the proper judge concerning the performance of his duties, as may be required by such judge; To make the proper notation regarding residence certificates. (Sec. 240, Rev. Adm. Code) (1995 Bar Question)
Q. What must one possess to qualify as a notary public? 3. A: To be eligible for commissioning as notary public, the petitioner must be: 4. 1. 2. 3. A citizen of the Philippines; Over 21 years of age; A resident in the Philippines for at least 1 year and maintains a regular place of work or business in the city or province where the commission is to be issued; A member of the Philippine Bar in good standing with clearances from the Office of the Bar Confidant of the Supreme Court and the Integrated Bar of the Philippines; and Has not been convicted in the first instance of any crime involving moral turpitude. (second par., Sec. 1, Rule III, 2004 Rules on Notarial Practice, A.M. No. 02-8-13-SC) 5. 6.
7. 4.
Q. Must a notary public always be a lawyer? A.
5.
GR: Yes. Only those admitted to the practice of law are qualified to be notaries public. XPN: When there are no persons with the necessary qualifications or where there are qualified persons but they refuse appointment.
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In which case, the following persons may be appointed as notaries: 1. Those who passed the studies of law in a reputable university; or 2. A clerk or deputy clerk of court for a period of not less than two years. Q: Can an RTC judge notarize a document? A: No. Section 35, Rule 138, of the Revised Rules of Court as well as Canon 5, Rule 5.07 of the Code of Judicial Conduct provides that no judge or other official or employee of the superior courts shall engage in private practice as a member of the bar or give professional advice to clients. Notarization of documents is considered a practice of law. It is based on sound reasons of public policy, for there is no question that the rights, duties, privileges and functions of the office of an attorney-at-law are so inherently incompatible with the high official functions, duties, powers, discretions and privileges of a judge of the Regional Trial Court. This rule makes it obligatory upon the judicial officers concerned to give their full time and attention to their judicial duties, prevent them from extending special favors for their own private interests and assure the public of impartiality in the performance of their functions. Q: Are MTC judges prohibited from acting as notary public? A: No. MTC and MCTC judges may act as notaries public ex-officio in the notarization of documents connected only with the exercise of their official functions and duties. They may not, as notaries public ex-officio, undertake the preparation and acknowledgment of private documents, contracts and other acts of conveyances which bear no direct relation to the performance of their functions as judges. However, MTC and MCTC judges assigned to municipalities or circuits with no lawyers or notaries public may, in the capacity as notaries public ex-officio, perform any act within the competence of a regular notary public, provided that: 1. All notarial fees charged be for the account of the Government and turned over to the municipal treasurer; and 2. Certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit. Q: Vicente Batic charged Judge Victorio Galapon Jr. with engaging in unauthorized notarial practice for having notarized a Deed of Absolute Sale between Antonio Caamic and Lualhati Ellert. Under the deed of sale, Lualhati Ellert, was described as single. At the time of Galapons notarization of the Deed of Sale, there was a notary public in Dulag, Leyte. Judge Galapon claims that he did not prepare the document and that his participation was limited to its acknowledgment, for which the corresponding fee was collected by and paid to the clerk of court. Are MTC judges like Judge Galapon absolutely prohibited from acting as notaries public? A: No. While Judge Galapon explains that he sincerely believed that when no notary public is available, the MTC may act as ex-officio notary public, provided the fees shall be for the government, such is not enough to exonerate him from liability. His acts do not fall under the exception because at the time of his notarization of the Deed of Sale, there was a notary public in Dulag, Leyte. (Vicente Batic v. Judge Victorio Galapon Jr., A.M. No. MTJ-99-1239, July 29, 2005) Q: Is the authority of MTC judges to notarize limited to their sala? A: Yes. Their authority to notarize is limited to their sala. Q: Can a judge of another town notarize the complaint to be filed in another town? A: No. It is considered as a practice of law. Q: Can a clerk of court notarize a document? A: Yes. A clerk of court can notarize a document provided he is commissioned and has been permitted by his superior. Such consent is necessary because the act of notarizing a document is a practice of law. Q: What are the rules with regard to fees that a notary public may charge? A: 1. For performing a notarial act, a notary public may charge the maximum fee as prescribed by the Supreme Court unless he waives the fee in whole or in part (Sec. 1, Rule V, A. M. 02-8-13-SC); 2. A notary public may charge travel fees and expenses separate and apart from the notarial fees when traveling to perform a
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notarial act if the notary public and the person requesting the notarial act agree prior to the travel (Sec. 2, Rule V, A. M. 02813-SC); No fee or compensation of any kind, except those expressly prescribed and allowed herein, shall be collected or received for any notarial service (Sec. 3, Rule V, A. M. 02-813-SC); A notary public shall not require payment of any fees specified herein prior to the performance of a notarial act unless otherwise agreed upon( first par., Sec. 4, Rule V, A. M. 02-813-SC); Any travel fees and expenses paid to a notary public prior to the performance of a notarial act are not subject to refund if the notary public had already traveled but failed to complete in whole or in part the notarial act for reasons beyond his control and without negligence on his part (second par., Sec. 4, Rule V, A. M. 02-813SC). of the commission as notary public must not be treated as a mere casual formality. In fact, Juans act also constitutes falsification of public document. Q: What is a commission? A: It refers to the grant of authority to perform notarial acts and to the written evidence of the authority (Sec. 3, Rule II, A.M. 02-8-13-SC). Q: Who issues a notarial commission? A: A notarial commission may be issued by an Executive Judge to any qualified person who submits a petition in accordance with the Rules on Notarial Practice. (first par., Sec. 1, Rule III, A.M. No. 02-8-13-SC) Q: What is the form of the petition and supporting documents for a notarial commission? A: Every petition for a notarial commission shall be in writing, verified, and shall include the following: 1. A statement containing the petitioner's personal qualifications, including the petitioner's date of birth, residence, telephone number, professional tax receipt, roll of attorney's number and IBP membership number; Certification of good moral character of the petitioner by at least 2 executive officers of the local chapter of the Integrated Bar of the Philippines where he is applying for commission; Proof of payment for the filing of the petition as required by the Rules on Notarial Practice; and Three passport-size color photographs with light background taken within 30 days of the application. The photograph should not be retouched. The petitioner shall sign his name at the bottom part of the photographs. (Sec. 2,Rule III, A.M. No. 02-8-13-SC)
3.
4.
5.
Note: A notary public who charges fee for notarial services shall issue a receipt registered with the Bureau of Internal revenue and keep a journal of notarial fees. He shall enter in the journal all fees charges for services rendered. A notary public shall post in a conspicuous place in his office a complete schedule of chargeable notarial fees. (Sec. 5, Rule V, A. M. 02-813-SC)
B. TERM OF OFFICE OF A NOTARY PUBLIC Q: What is the term of office of a notary public? A: A notary public may perform notarial acts for a period of 2 years commencing the 1st day of January of the year in which the commissioning is made, unless earlier revoked or the notary public has resigned under the Rules on Notarial Practice and the Rules of Court.(Section 11, Rule III,A.M. No. 02-8-13-SC) (1995 Bar Question) Q: Juan dela Cruz was commissioned as a notary public in 2001. His friend asked him to notarize a deed of absolute sale sometime in 2004, to which he agreed free of charge. A complaint for malpractice was filed against him. Is Juan dela Cruz guilty of malpractice? A: Yes. Absent any showing that his notarial commission has been renewed, his act constitutes malpractice because at the time he notarized the document, his notarial commission has already expired. It is not a defense that no payment has been received. The requirement for the issuance
2.
3.
4.
Note: Every petitioner for a notarial commission shall pay the application fee as prescribed in the Rules of Court. (Sec. 3, Rule III, A.M. No. 02-8-13-SC)
Q: Before the Executive Judge shall conduct a summary hearing on the petition, what requirements must be met?
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A: 1. 2. 3. The petition is sufficient in form and substance; The petitioner proves the allegations contained in the petition; and The petitioner establishes to the satisfaction of the Executive Judge that he has read and fully understood the Rules on Notarial Practice.
Note: The Executive Judge shall, upon payment of the application fee, act on an application for renewal of a commission within thirty (30) days from receipt thereof. If the application is denied, the Executive Judge shall state the reasons therefor. (Sec. 14, Rule III, A.M. No. 02-8-13-SC)
C. POWERS AND LIMITATIONS OF A NOTARY PUBLIC

Note: Notarial Act and Notarization refer to any act that a notary public is empowered to perform under these Rules. (Sec. 7, Rule II, A.M. 02-8-13-SC)
Note:: The Executive Judge shall forthwith issue a commission and a Certificate of Authorization to Purchase a Notarial Seal in favor of the petitioner. (Sec. 4, Rule III, A.M. No. 02-8-13-SC) Note: Any person who has any cause or reason to object to the grant of the petition may file a verified written opposition thereto. The opposition must be received by the Executive Judge before the date of the summary hearing.(Sec. 6, Rule III, A.M. No. 02-813-SC) Note: The commissioning of a notary public shall be in a formal order signed by the Executive Judge. (Sec. 7, Rule III, A.M. No. 02-8-13-SC)
Q: What are the powers of a notary public? A: A notary public is empowered to perform the following notarial acts: JAO-CAS 1. Acknowledgements; 2. Oaths and affirmations; 3. Jurats; 4. Signature witnessings; 5. Copy certifications; and 6. Any other act authorized by these rules (Section 1(a), Rule IV, A.M. No. 02-8-13-SC) Acknowledgements Q: What is an acknowledgement? A: Acknowledgment refers to an act in which an individual on a single occasion: 1. Appears in person before the notary public and presents an integrally complete instrument or document;
Note: A notary public cannot perform a notarial act over a document that has missing pages, or that contains blanks that should be filled-in prior to the notarial act.
Note: Every person commissioned as notary public shall have only one official seal of office.
(Sec. 10, Rule III, A.M. No. 02-8-13-SC)
Q: What must a notary public do when his commission expires? A: A notary public may file a written application with the Executive Judge for the renewal of his commission within 45 days before the expiration thereof. A mark, image or impression of the seal of the notary public shall be attached in the application. (first par., Sec. 13, Rule III, A.M. No.
02-8-13-SC) Note: If a person is applying for a commission for the first time, what he files is a petition and not an application.
2.
Q: what is the effect of failure of the notary public to file an application for the renewal of his commission? A: Failure to file said application will result in the deletion of the name of the notary public in the register of notaries public. (second par., Sec. 13, Rule III, A.M. No. 02-8-13-SC)
Note: The notary public thus removed from the Register of Notaries Public may only be reinstated therein after he is issued a new commission. (third par., Sec. 13, Rule III, A.M. No. 02-8-13-SC)
Is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice; and Represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity, that he has the authority to sign in that capacity. (Sec. 1, Rule II, A.M. 02-8-13-SC)
3.
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Q: Cabanilla filed a complaint against Atty. Cristal-Tenorio with the IBP, alleging that he never appeared before her when she notarized the deed of sale of his house, and that the signatures appearing opposite their respective names were forgeries. Did Atty. Cristal-Tenorio fail to comply with the mandates of the law when she notarized the deed of sale without the complainant and his children? Does such failure warrant the revocation of her notarial commission? A: Yes. Under Section 1(a) of Act 2103, a notary public taking the acknowledgment in a document or instrument is mandated to certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it and acknowledged that the same is his free act and deed. To "acknowledge before" means to avow; to own as genuine, to assert, to admit; and "before" means in front or preceding in space or ahead of. A party acknowledging must appear before the notary public. A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before the said notary public to attest to the contents and truth of what are stated therein. The presence of the parties to the deed making the acknowledgment will enable the notary public to verify the genuineness of the signature of the affiant. A notary public is enjoined from notarizing a fictitious or spurious document. The function of a notary public is, among others, to guard against any illegal deed. (Cabanilla v. Cristal-Tenorio, A.C. No. 6139, Nov. 11, 2003) Oaths and Affirmations Q: What is affirmation or oath? A: It refers to an act in which an individual on a single occasion: 1. Appears in person before the notary public; 2. Is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice; and 3. Avows under penalty of law to the whole truth of the contents of the instrument or document. (Sec. 2,Rule II,A.M. No. 02-813-SC) Republic Act No. 9406. March 23, 2007. AN ACT REORGANIZING AND STRENGTHENING THE PUBLIC ATTORNEY'S OFFICE (PAO), AMENDING FOR THE PURPOSE PERTINENT PROVISIONS OF EXECUTIVE ORDER NO. 292, OTHERWISE KNOWN AS THE "ADMINISTRATIVE CODE OF 1987", AS AMENDED, GRANTING SPECIAL ALLOWANCE TO PAO OFFICIALS AND LAWYERS, AND PROVIDING FUNDS THEREFOR Section 8. Sections 41 and 42, Chapter 10, Book I of the same Code, as amended, is hereby further amended to read as follows: Q: Who are the officers authorized to administer oaths? A: The following officers have general authority to administer oaths: 1. President; 2. Vice-President; 3. Members and Secretaries of both Houses of the Congress; 4. Members of the Judiciary; 5. Secretaries of Departments; 6. provincial governors and lieutenantgovernors; 7. City mayors; 8. Municipal mayors; 9. Bureau directors; 10. Regional directors; 11. Clerk of courts; 12. Registrars of deeds; 13. Other civilian officers in the public service of the government of the Philippines whose appointments are vested in the President and are subject to confirmation by the Commission on Appointments; 14. All other constitutional officers; 15. PAO lawyers in connection with the performance of duty; and 16. notaries public. (Sec. 41) Q: What is the rule regarding the duty to administer oaths? A: Officers authorized to administer oaths, with the exception of notaries public, municipal judges and clerks of court, are not obliged to administer oaths or execute certificates save in matters of official business or in relation to their functions as such; and with the exception of notaries public, the officer performing the service in those matters shall charge no fee, unless specifically authorized by law. (Section 42)
Note: P.A.O. Lawyers now have the authority to administer oaths, provided it is in connection with the performance of their duties.
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The fiscal or the state prosecutor has the authority to administer oaths. (R.A. No. 5180, as amended by P.D. 911)
Jurats Q: What is a jurat? A: It refers to an act in which an individual on a single occasion: 1. Appears in person before the notary public and presents an instrument or document; 2. Is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice; 3. Signs the instrument or document in the presence of the notary; and 4. Takes an oath or affirmation before the notary public as to such instrument or document. (Sec. 6, Rule II, A.M. 02-8-13SC)
Note: A jurat is not a part of a pleading but merely evidences the fact that the affidavit was properly made. The claim or be.lief of Atty. Dela Rea that the presence of petitioner Gamido was not necessary for the jurat because it is not an acknowledgment is patently baseless. If this had been his belief since he was first commissioned as a notary public, then he has been making a mockery of the legal solemnity of an oath in a jurat. Notaries public and others authorized by law to administer oaths or to take acknowledgments should not take for granted the solemn duties appertaining to their offices. Such duties are dictated by public policy and are impressed with public interest. (Gamido v. Bilibid Prisons Officials, G.R. No. 114829, Mar. 1, 1995)
same person who executed it and acknowledged that the same is his free act and deed. Two-fold purpose: to authorize the deed to be given in evidence without further proof of its execution, and, to entitle it to be recorded. Where used: 1. To authenticate an agreement between two or more persons; or 2. Where the document contains a disposition of property. E.g. The acknowledgement in a deed of lease of land.
Purpose: Gives the document a legal character.
Where used: 1. Affidavits; 2. certifications; 3. Whenever the person executing makes a statement of facts or attests to the truth of an event, under oath. E.g. An affidavit subscribed before a notary public or public official authorized for the purpose.
Note: If a document is certified by way of jurat, instead of acknowledgement, the document is a private one. Hence, to be admissible as evidence, the same must be offered and proven in accordance with the Rules on Evidence. Signature Witnessing
Q: What is signature witnessing? A: It refers to a notarial act in which an individual on a single occasion: 1. Appears in person before the notary public and presents an instrument or document; Is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice; and Signs the instrument or document in the presence of the notary public. (Sec. 14, Rule II, A. M. No. 02-8-13-SC)
Q: Distinguish acknowledgement from jurat. A: ACKNOWLEDGMENT Act of one who has executed a deed, in going to some competent officer or court and declaring it to be his act or deed. The notary public or officer taking the acknowledgement shall certify that the person acknowledging the instrument or document is known to him and he is the
JURAT 2. That part of an affidavit in which the notary public or officer certifies that the instrument was sworn to before him. It is not part of a pleading but merely evidences the fact that the affidavit was properly made.
3.
Q: Is a notary public authorized to certify the affixing of a signature by thumb or other mark on an instrument or document presented for notarization? A: Yes. It is also within the powers of a notary public, provided:
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1. The thumb or other mark is affixed in the presence of the notary public and of two (2) disinterested and unaffected witnesses to the instrument or document; Both witnesses sign their own names in addition to the thumb or other mark; The notary public writes below the thumb or other mark: thumb or other mark affixed by (name of signatory by mark) in the presence of (names and addresses of witnesses) and undersigned notary public, and The notary public notarizes the signature by thumb or other mark through an acknowledgment, jurat or signature witnessing. (Sec. 1(b), Rule IV, A.M. No. 02-8-13-SC) (1995 Bar Question)
Note: The document copied must be an original document. It cannot be a copy itself.
2. 3.
Q: How should a notary public notarize a paper instrument or document? A: In notarizing a paper instrument or document, a notary public shall: 1. Sign by hand on the notarial certificate only the name indicated and as appearing on the notary's commission; 2. Not sign using a facsimile stamp or printing device; and 3. Affix his official signature only at the time the notarial act is performed.(Sec. 1, Rule VII, A.M. 02-8-13-SC) Q: What are the effects of notarization?
4.
Q: Is a notary public authorized to sign on behalf of a person who is physically unable to sign or make a mark on an instrument or document? A: Yes. It likewise falls within the powers of a notary public, provided: 1. The notary public is directed by the person unable to sign or make a mark to sign on his behalf; The signature of the notary public is affixed in the presence of 2 disinterested and unaffected witnesses to the instrument or document; Both witnesses sign their own names; The notary public writes below his signature: Signature affixed by notary in the presence of (names and addresses of person and 2 witnesses), and The notary public notarizes his signature by acknowledgment or jurat. (Sec. 1(c), Rule IV, A.M. 02-8-13-SC) (1995 Bar Question) Copy Certifications Q: What is copy certification? A: It refers to a notarial act in which a notary public: 1. Is presented with an instrument or document that is neither a vital record, a public record, nor publicly recordable; 2. Copies or supervises the copying of the instrument or document; 3. Compares the instrument or document with the copy; and 4. Determines that the copy is accurate and complete. (Sec. 4, Rule II, A.M. 02-8-13-SC)
A: 1. The notary, in effect, proclaims to the world that: a. b. c. d. e. All the parties therein personally appeared before him; They are personally known to him; They are the same persons who executed the instrument; He inquired into the voluntariness of the execution of the instrument; They acknowledge personally before him that they voluntarily and freely executed the same.
2.
3. 4.
2.
Converts a private document into a public one and renders it admissible in court without further proof of its authenticity. Documents enjoy a presumption of regularity. It constitutes prima facie evidence of the facts which give rise to their execution and of the date of said execution, but not of the truthfulness of the statement.
5.
3.
Note: The reason for the presumption is that the law assumes that the act which the officer witnessed and certified to or the date written by him are not shown to be false since notaries are public officers. Note: A notarial document is by law entitled to full faith and credit upon its face and, for this reason, notaries public must observe with utmost care the basic requirements in the performance of their duties, lest, the confidence of the public in the integrity of the document will be undermined.
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Q: What is a notarial certificate? A: It refers to the part of, or attachment to a notarized instrument or document that is completed by the notary public which bears the notary's signature and seal, and states the facts attested to by the notary public in a particular notarization as provided for by the Rules on Notarial Practice. (Sec. 8, Rule II, A. M. No. 02-813)
Note: Loose notarial certificate refers to a notarial certificate that is attached to a notarized instrument or document. Note: "Official seal" or "seal" refers to a device for affixing a mark, image or impression on all papers officially signed by the notary public conforming the requisites prescribed by the Rules on Notarial Practice. (Sec. 13,Rule II, A.M. No. 02-8-13-SC)
c. d.
notary public through competent evidence of identity as defined by the Rules on Notarial Practice. (Sec. 2(b)(2), Rule IV, A.M. No. 02-8-13-SC) The document is blank or incomplete; (Sec.6(a) Rule IV, A.M. 02-8-13-SC) An instrument or document is without appropriate notarial certification. (Sec. 6, Rule IV, A.M. 028-13-SC)
Q: What must the notarial certificate contain? A: 1. 2. 3. The name of the notary public as exactly indicated in the commission; The serial number of the commission of the notary public; The words "Notary Public" and the province or city where the notary public is commissioned, the expiration date of the commission, the office address of the notary public; and The roll of attorney's number, the professional tax receipt number and the place and date of issuance thereof, and the IBP membership number. (Sec. 2, Rule VIII, A.M. 02-8-13-SC)
Q: Engineer Cynthia de la Cruz Catalya filed an application for building permit in connection with the renovation of a building situated on a lot owned by her brother Rolando de la Cruz. One of the documents required in the processing of the application was an affidavit to be executed by the lot owner. Since Rolando de la Cruz was a resident abroad, an affidavit was prepared wherein it was made to appear that he was a resident of Leyte; that he was the owner of the lot whereon the building subject of the application for the issuance of a building permit was situated. Atty. Francisco Villamor notarized the purported affidavit. According to him, a Chinese mestizo appeared in his law office one time, requesting that his affidavit be notarized. Said person declared that he was Rolando de la Cruz. Atty. Villamor then asked for the production of his residence certificate, but he said, he did not bother to bring the same along with him anymore as, he has already indicated his serial number, in the jurat portion together with the date of issue and place of issue. Did Atty. Francisco Villamor commit a violation of notarial law? A: Yes. It is the duty of the notarial officer to demand that the document presented to him for notarization should be signed in his presence. By his admission, the affidavit was already signed by the purported affiant at the time it was presented to him for notarization. Atty. Villamor thus failed to heed his duty as a notary public to demand that the document for notarization be signed in his presence. (Traya Jr. v. Villamor, A.C. No. 4595, Feb. 6, 2004) Q: During their lifetime, the Spouses Villanueva acquired several parcels of land. They were survived by their 5 children: Simeona, Susana, Maria, Alfonso, and Florencia. Alfonso executed an Affidavit of Adjudication stating that as the only surviving son and sole heir of the spouses, he was adjudicating to
4.
Note: A notary public shall not: a. execute a certificate containing information known or believed by the notary to be false. b. affix an official signature or seal on a notarial certificate that is incomplete.
Q: What are the limitations to the performance of a notarial act of a notary public? A: A person shall not perform a notarial act if: 1. The person involved as signatory to the instrument or document is: a. Not in the notary's presence personally at the time of the notarization; and (Sec. 2(b)(1), Rule IV, A.M. No. 02-8-13-SC) Not personally known to the notary public or otherwise identified by the
b.
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himself a parcel of land. Thereafter, he executed a Deed of Absolute Sale, conveying the property to Adriano Villanueva. Atty. Salud Beradio appeared as notary public on both the affidavit of adjudication and the deed of sale. Atty. Beradio knew of the falsity of Alfonsos statement. Florencia and descendants of the other children of the spouses were still alive at the time of execution of both documents. Was there a failure to discharge properly the duties of a notary public? A: Yes. Atty. Beradios conduct breached the Code of Professional Responsibility, which requires lawyers to obey the laws of the land and promote respect for the law and legal processes as well as Rule 1.01 of the Code which proscribes lawyers from engaging in unlawful, dishonest, immoral, or deceitful conduct. She herself admitted that she knew of the falsity of Alfonsos statement that he was the sole heir of the spouses. She therefore notarized a document while fully aware that it contained a material falsehood. The affidavit of adjudication is premised on this very assertion. By this instrument, Alfonso claimed a portion of his parents estate all to himself, to the exclusion of his co-heirs. Shortly afterwards, Atty. Beradio notarized the deed of sale, knowing that the deed took basis from the unlawful affidavit of adjudication. (Heirs of the Late Spouses Lucas v. Atty. Beradio, A.C. No. 6270, Jan. 22, 2007)
Note: Where admittedly the notary public has personal knowledge of a false statement or information contained in the instrument to be notarized, yet proceeds to affix his or her notarial seal on it, the court must not hesitate to discipline the notary public accordingly as the circumstances of the case may dictate. Otherwise, the integrity and sanctity of the notarization process may be undermined and public confidence on notarial documents diminished. (Ibid)
3.
Is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree. (Sec. 3, Rule IV, A.M. No. 02-8-13-SC) (1995 Bar Question)
Note: The function of a notary public is, among others, to guard against any illegal or immoral arrangements. That function would be defeated if the notary public is one of the signatories to the instrument. For then, he would be interested in sustaining the validity thereof as it directly involves himself and the validity of his own act. It would place him in an inconsistent position, and the very purpose of the acknowledgment, which is to minimize fraud, would be thwarted. (Villarin v. Sabate, A.C. No. 3224, Feb. 9, 2000)
Q: When may a notary public refuse to notarize even if the appropriate fee is tendered? A: 1. The notary knows or has good reason to believe that the notarial act or transaction is unlawful or immoral; The signatory shows a demeanor which engenders in the mind of the notary public reasonable doubt as to the former's knowledge of the consequences of the transaction requiring a notarial act; In the notary's judgment, the signatory is not acting of his or her own free will; (Sec. 4, Rule V, A.M. No. 02-8-13-SC) or If the document or instrument to be notarized is considered as an improper document by the Rules on Notarial Practice.
2.
3.
4.
Note: Improper instrument/document is a blank or incomplete instrument or an instrument or document without appropriate notarial certification. (Sec. 6, Rule V, A.M. No. 02-8-13-SC)
D. NOTARIAL REGISTER Q: What is a Notarial Register?
Q: When is a notary public disqualified from performing a notarial act? A: When the notary public: 1. Is a party to the instrument or document that is to be notarized; 2. Will receive, as a direct or indirect result, any commission, fee, advantage, right, title, interest, cash, property, or other consideration, except as provided by the Rules on Notarial Practice and by law; or
A: It refers to a permanently bound book with numbered pages containing a chronological record of notarial acts performed by a notary public.(Sec. 5, Rule II, A.M. No. 02-8-13-SC) Q: What is the form of notarial register? A: A notary public shall keep, maintain, protect and provide for lawful inspection as provided in these Rules, a chronological official notarial
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register of notarial acts consisting of a permanently bound book with numbered pages. The register shall be kept in books to be furnished by the Solicitor General to any notary public upon request and upon payment of the cost thereof. The register shall be duly paged, and on the first page, the Solicitor General shall certify the number of pages of which the book consists. For purposes of this provision, a Memorandum of Agreement or Understanding may be entered into by the Office of the Solicitor General and the Office of the Court Administrator. (Sec. 1(a), Rule VI, A.M. No. 02-8-13-SC) Q: How many notarial register may a notary public keep? A: A notary public shall keep only one active notarial register at any given time. (Sec. 1(b), Rule VI, A.M. No. 02-8-13-SC) Q: What information should be entered in the notarial register? A: a. For every notarial act, the notary shall record in the notarial register at the time of notarization the following: 1. 2. the entry number and page number; the date and time of day of the notarial act; 3. the type of notarial act; 4. the title or description of the instrument, document or proceeding; 5. the name and address of each principal; 6. the competent evidence of identity as defined by these Rules if the signatory is not personally known to the notary; 7. the name and address of each credible witness swearing to or affirming the person's identity; 8. the fee charged for the notarial act; 9. the address where the notarization was performed if not in the notary's regular place of work or business; and 10. any other circumstance the notary public may deem of significance or relevance.(Sec. 2(a), Rule VI, A.M. No. 02-8-13-SC) b. In case of failure to complete a notarial act, record in the notarial register the
e. d.
reasons and circumstances for not completing a notarial act (Sec. 2(b), Rule VI, A.M. No. 02-8-13-SC) c. the circumstances of any request to inspect or copy an entry in the notarial register, including the requester's name, address, signature, thumbmark or other recognized identifier, and evidence of identity. (Sec.2(c),Rule VI, A.M. No. 02-813-SC)
Note: The reasons for refusal to allow inspection or copying of a journal entry shall also be recorded. (Ibid.)
When the instrument or document is a contract, keep an original copy thereof as part of his records and enter in said records a brief description of the substance thereof and shall give to each entry a consecutive number, beginning with number one in each calendar year. (Sec.2(d),Rule VI, A.M. No. 02-8-13-SC) Note: He shall also retain a duplicate original copy for the Clerk of Court.
(Ibid.)
In case of a protest of any draft, bill of exchange or promissory note, make a full and true record of all proceedings in relation thereto and shall note therein whether the demand for the sum of money was made, by whom, when, and where; whether he presented such draft, bill or note; whether notices were given, to whom and in what manner; where the same was made, when and to whom and where directed; and of every other fact touching the same. (Sec. 2(f), Rule VI, A.M. No. 02-8-13-SC) At the end of each week, the notary public shall certify in his notarial register the number of instruments or documents executed, sworn to, acknowledged, or protested before him; or if none, this certificate shall show this fact. (Sec. 2(g), Rule VI, A.M. No. 02-8-13-SC)
f.
Note: A certified copy of each month's entries and a duplicate original copy of any instrument acknowledged before the notary public shall, within the first ten (10) days of the month following, be forwarded to the Clerk of Court and shall be under the responsibility of such officer. If there is no entry to certify for the month, the notary shall forward a statement to this effect in lieu of certified copies
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herein required. (Sec. 2(h), Rule VI, A.M. No. 02-8-13SC) Note: The notary public shall give to each instrument or document executed, sworn to, or acknowledged before him a number corresponding to the one in his register, and shall also state on the instrument or document the page/s of his register on which the same is recorded. No blank line shall be left between entries. (Sec. 2(e), Rule VI, A.M. No. 02-8-13-SC) any person applying for such copy upon payment of the legal fees. (Sec. 6, Rule VI, A. M. No. 02-8-13-
SC) Q: May a notary public refuse the request of inspection for register of deeds? A: Yes. if the notary public has a reasonable ground to believe that a person has a criminal intent or wrongful motive in requesting information from the notarial register, the notary shall deny access to any entry or entries therein. (Sec. 4(c), Rule VI, A. M. No. 02-8-13-SC) Q: State the rule in case of loss, destruction or damage of notarial register. A: 1. In case the notarial register is stolen, lost, destroyed, damaged, or otherwise rendered unusable or illegible as a record of notarial acts, the notary public shall, within ten (10) days after informing the appropriate law enforcement agency in the case of theft or vandalism, notify the Executive Judge by any means providing a proper receipt or acknowledgment, including registered mail and also provide a copy or number of any pertinent police report. Upon revocation or expiration of a notarial commission, or death of the notary public, the notarial register and notarial records shall immediately be delivered to the office of the Executive Judge. (Sec. 5, Rule VI, A. M. No. 02-8-13-SC)
Q: Who shall sign or affix a thumbmark in the notarial register? A: At the time of notarization, the notary's notarial register shall be signed or a thumb or other mark affixed by each: a. principal; b. credible witness swearing or affirming to the identity of a principal; and c. witness to a signature by thumb or other mark, or to a signing by the notary public on behalf of a person physically unable to sign. Sec. 3,Rule VI, A.M. No. 02-8-13-SC) Q: Can any person inspect an entry in the notarial register? A: Yes, provided: 1. The inspection is made in the notarys presence; 2. During regular business hours 3. The person's identity is personally known to the notary public or proven through competent evidence of identity as defined in these Rules; 4. The person affixes a signature and thumb or other mark or other recognized identifier, in the notarial .register in a separate, dated entry; 5. The person specifies the month, year, type of instrument or document, and name of the principal in the notarial act or acts sought; and 6. The person is shown only the entry or entries specified by him. (Sec.4(a), Rule VI, A.M. No. 02-8-13-SC) Q: May a law enforcement officers examine the notarial register? A: Yes, the notarial register may be examined by a law enforcement officer in the course of an official investigation or by virtue of a court order. (Sec. 4(b), Rule VI, A. M. No. 02-8-13-SC)
Note: The notary public shall supply a certified true copy of the notarial record, or any part thereof, to
2.
E. JURISDICTION OF NOTARY PUBLIC AND PLACE OF NOTARIZATION Q: What is the jurisdiction of a notary public? A: A notary public may perform notarial acts in any place within the territorial jurisdiction of the commissioning court. Q: What is the phrase regular place of work or business of a notary public mean? A: The regular place of work or business refers to a stationary office in the city or province wherein the notary public renders legal and notarial services. (Sec. 11, Rule II, 2004 Rules on Notarial Practice)
Note: Under the Notarial Law, the jurisdiction of a notary public is co-extensive with the province for which he was commissioned; and for the notary
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public in the city of Manila, the jurisdiction is coextensive with said city. Circular 8 of 1985, however, clarified further that the notary public may be commissioned for the same term only by one court within the Metro Manila region. Notary Public. (Amora, Jr. v. Comelec, G.R. No. 192280, January 25, 2011)
Q: What is competent evidence of identity? A: It refers to the identification of an individual based on: 1. At least one current identification document issued by an official agency bearing the photograph and signature of the individual such as but not limited to: a. b. c. Passport, Drivers license, Professional Regulation Commission ID, d. National Bureau of Investigation clearance, e. Police clearance, f. Postal ID, g. Voters ID, h. Barangay Certification, i. Government Service Insurance System e-card, j. Social Security System card, k. Philhealth card, l. Senior Citized card, m. Overseas Workers Welfare Administration (OWWA) ID, n. OFW ID, o. sea mans book, p. alien certificate of registration, q. government office ID, r. certification from the National Council for the Welfare of Disabled Persons (NCWDP), s. Department of Social Welfare Development (DSWD) certification; or 2. The oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification. (Amendment to Sec. 12 (a), Rule II of the 2004 Rules on Notarial Practice, Feb. 19, 2008).
Q: Can a notary public perform a notarial act outside his jurisdiction and his regular place of work or business? A: GR: A notary public shall not perform a notarial act outside his jurisdiction and his regular place of work or business. XPN: A notarial act may be performed at the request of the parties in the following sites, other than his regular place of work or business, located within his territorial jurisdiction: 1. Public offices, convention halls, and other appropriate public places for the purpose of administering oaths of office; (Sec. 2, Rule IV, A. M. No. 02-813-SC) At the request of the parties, public function areas in hotels and other appropriate places for the signing of the contracts, deeds, and other documents requiring notarization; (Ibid.) Residence of any party of a contract, deed, or other document requiring notarization; (Ibid.) Hospitals and other medical institutions where a party to a contract is confined for treatment; (Ibid.) Any place where for legal reason a party to a contract, deed, or other document requiring notarization may be confined, (Ibid.) and; Such other places as may be dictated because of emergency.(1996 Bar Question)
2.
3.
4.
5.
6.
Note: It is improper for a notary public to notarize documents in sidewalk since it is now required that a notary public should maintain a regular place of work or business within the city or province where he is commissioned. The SC evidently wants to eradicate the practice of fly by night notaries public who notarized documents in improvised offices.
F. COMPETENT EVIDENCE OF IDENTITY

Note: Competent evidence of identity is not required in cases where the affiant is personally known to the
Note: These are in addition to the presentation of the signatories Community Tax Certificate (CTC) as required by Notarial Law (Act 2711). Notaries public are required by the Notarial Law to certify that the party to the instrument has
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acknowledged and presented before the notaries public the proper residence certificate (or exemption from the residence certificate) and to enter its number, place, and date of issue as part of certification. Sec. 12, Rule II of the 2004 Rules on Notarial Practice now requires a party to the instrument to present competent evidence of identity. (Legaspi v. Atty. Dimaano, Jr., A.C. No. 7781, Sept. 12, 2008)
Q: Atty. Regino Tamabago notarized a last will and testament under which, the decedent supposedly bequeathed his entire estate to his wife, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, half siblings of Manuel Lee, the complainant. The will was purportedly executed and acknowledged before respondent on June 30, 1965. However, the residence certificate of the testator noted in the acknowledgment of the will was dated January 5, 1962. There is also absence of notation of the residence certificates of the purported witnesses. Did Atty. Regino Tamabago violate any of the duties of a notary public? A: Atty. Tamabago, as notary public, evidently failed in the performance of the elementary duties of his office. There is absence of a notation of the residence certificates of the notarial witnesses in the will in the acknowledgment. Further, the notation of the testators old residence certificate in the same acknowledgment was a clear breach of the law. The Notarial Law then in force required the exhibition of the residence certificate upon notarization of a document or instrument. By having allowed decedent to exhibit an expired residence certificate, Atty. Tamabago failed to comply with the requirements of the old Notarial Law. As much could be said of his failure to demand the exhibition of the residence certificates of notarial witnesses. Defects in the observance of the solemnities prescribed by law render the entire will invalid. (Manuel Lee v. Atty. Regino Tamabago, A.C. No. 5281, Feb. 12, 2008) G. REVOCATION OF COMMISSION AND DISCIPLINARY SANCTIONS Q: Who can revoke a notarial commission? A: The notarial commission may be revoked by 1. The Executive Judge of the RTC who issued the commission on any ground on which an application for commission may be denied (Sec. 1, Rule XI, A.M. No. 02-8-13SC,) or; By the Supreme Court itself in the exercise of its general supervisory powers over lawyer.
Q: Is a community tax certificate still a competent evidence of identity? A: No. A notary public can no longer accept a cedula or a community tax certificate (CTC), the successor document to the residence certificate originally required by the Notarial Law as proof of identity. Such does not even contain a photograph of the person to whom it is issued. Further, CTC may be easily obtained by anyone, without any supporting papers, thereby debasing its value as an identity document.
Note: In the list of grounds for disqualification of persons running for any local elective position under Section 40 of the LGC, nowhere therein does it specify that a defective notarization is a ground for the disqualification of a candidate. Thus, presentation of CTC before the notary public, in compliance with the requirement of presentation of competent evidence of identity, though improper, does not in itself warrant the disqualification of a candidate to run for any elective position. (Amora, Jr. v. Comelec, G.R. No. 192280, January 25, 2011)
Q: Is the presentation of Community Tax Certificate no longer necessary in view of the amendment? A: No. Its presentation is still mandatory pursuant to Local Government Code of the Philippines in order to show payment of taxes. Said law provides: When an individual subject to the community tax acknowledges any document before a notary public, takes the oath of office upon election or appointment to any position in the government service; receives any license, certificate, or permit from any public authority; pays any tax or fee; receives any money from any public fund; transacts other official business; or receives any salary or wage from any person or corporation, it shall be the duty of any person, officer, or corporation with whom such transaction is made or business done or from whom any salary or wage is received to require such individual to exhibit the community tax certificate. (Sec. 163, LGC)
2.
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Q: What are the grounds for revocation of notarial commission? A: The executive Judge shall revoke a notarial commission for any ground on which an application for a commission may be denied. In addition, the Executive Judge may revoke the commission of, or impose appropriate administrative sanctions upon, any notary public who: 1. 2. Fails to keep a notarial register; Fails to make the proper entry or entries in his notarial register concerning his notarial acts; Fails to send the copy of the entries to the Executive Judge within the first ten (10) days of the month following; Fails to affix to acknowledgments the date of expiration of his commission; Fails to submit his notarial register, when filled, to the Executive Judge; Fails to make his report, within a reasonable time, to the Executive Judge concerning the performance of his duties, as may be required by the judge; Fails to require the presence of a principal at the time of the notarial act;
Note: "Principal" refers to a person appearing before the notary public whose act is the subject of notarization.
2.
Obtains, conceals, defaces, or destroys the seal, notarial register, or official records of a notary public; and Solicits, coerces, or in any way influences a notary public to commit official misconduct. (Sec. 1, Rule XII, Rule on Notarial Practice)
3.
3.
4. 5. 6.
7.
8.
Fails to identify a principal on the basis of personal knowledge or competent evidence; 9. Executes a false or incomplete certificate under Section 5, Rule IV; 10. Knowingly performs or fails to perform any other act prohibited or mandated by these Rules; and 11. Commits any other dereliction or act which in the judgment of the Executive Judge constitutes good cause for revocation of commission or imposition of administrative sanction.(Sec. 1, Rule XI, Rule on Notarial Practice) Q: What are punishable acts under the 2004 Rules on Notarial Practice? A: The Executive Judge shall cause prosecution of any person who knowingly: 1. the
Acts or otherwise impersonates a notary public;
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Judicial Ethics - Preliminary

duties of the office. Moreover, one cannot be actually acting under any color of right when he has ceased to be a judge and has actually vacated the office by the acceptance of another office and by actually entering upon the duties of the other office. (Lino Luna v. Rodriguez and De Los Angeles, G.R. No. L-13744, Nov. 29, 1918)
JUDICIAL ETHICS
I. PRELIMINARY
A. CONCEPT Q: What is judicial ethics? A: It is the branch of moral science which treats of the right and proper conduct to be observed by all judges in trying and deciding controversies brought before them for adjudication which conduct must be demonstrative of impartiality, integrity, competence, independence and freedom from improprieties. This freedom from improprieties must be observed in both the public and private life of a judge being the visible representation of the law. Q: Who is a judge? A: Any person exercising judicial power however designated. (New Code of Judicial Conduct) A judge is a public officer who, by virtue of his office, is clothed with judicial authority; A public officer lawfully appointed to decide litigated questions in accordance with law. (People v. Manantan, G.R. No. L-14129, Aug. 30, 1962)
Note: This refers to persons only. There may be a judge without a court.
B. QUALIFICATIONS OF JUSTICES AND JUDGES. Q: What are the qualifications of justices of the Supreme Court or Court of Appeals? A: One must be: 1. A natural-born citizen of the Philippines; 2. At least 40 years of age; 3. A person who has been, for 15 years or more, a judge of a lower court or engaged in the practice of law; and 4. A person of proven competence, integrity, probity and independence. (Sec. 7(2), Art. VIII, 1987 Constitution) Q: What are the qualifications to be a RTC judge? A: One must be: 1. A natural-born citizen of the Philippines; 2. At least 35 years of age; and 3. For at least 10 years engaged in the practice of law in the Philippines or held a public office in the Philippines requiring admission to the practice of law as an indispensable requisite. (1997 Bar Question) Q: What are the qualifications to be an MTC judge? A: One must be: 1. A natural-born citizen of the Philippines; 2. At least 30 years of age; and 3. For at least 5 years, engaged in the practice of law in the Philippines or held a public office in the Philippines requiring admission to the practice of law as an indispensable requisite. Q: What is the proper judicial deportment?
Q: Who is a de jure judge? A: One who exercises the office of a judge as a matter of right, fully vested with all the powers and functions conceded to him under the law. (Luna v. Rodriguez, G.R. No. L-13744, Nov. 29, 1918) Q: Who is a de facto judge? A: An officer who is not fully vested with all the powers and duties conceded to judges but, one who exercises the office of judge under some color of right. He has the reputation of the officer he assumes to be, yet he has some defect in his right to exercise judicial functions at the particular time. (Luna v. Rodriguez, G.R. No. L13744, Nov. 29, 1918)
Note: There cannot be a de facto judge when there is a de jure judge in the actual performance of the
A: 1. Attitude toward counsel He must be courteous especially to the young and inexperienced, should not interrupt in their arguments except to clarify his minds as to their positions, must not be tempted to an unnecessary display of learning or premature judgment, may criticize and
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2. correct unprofessional conduct of a lawyer but not in an insulting manner. Attitude toward litigants and witnesses He must be considerate, courteous and civil, must not utter intemperate language during the hearing of a case.
3.
II. THE NEW CODE OF JUDICIAL CONDUCT. FOR THE PHILIPPINE JUDICIARY. (A.M. NO. 03-05-01).
Q: What is the proper judicial conduct? A: Judges and justices must conduct themselves as to be beyond reproach and suspicion and be free from appearance of impropriety in their personal behavior not only in the discharge of official duties but also in their everyday lives. Q: What are the two sources of judicial ethics? A: 1. 2. New Code of Judicial Conduct for the Philippine Judiciary (Bangalore Draft); Code of Judicial Conduct
Note: The New Code of Judicial Conduct (NCJC) for the Philippine Judiciary which took effect on June 1, 2004 supersedes the Canons of Judicial Ethics and the Code of Judicial Conduct. Provided, however, that in case of deficiency or absence of specific provisions in this New Code, the Canons of Judicial Ethics and Code of Judicial Conduct shall be applicable in a suppletory character. (2007 Bar Question) This was adopted from the universal declaration of standards for ethical conduct embodied in the Bangalore Draft as revised at the Round Table Conference of Chief Justices at the Hague. Note: The New code contains 6 Canons and 44 Rules.
Q: What are the six (6) canons under the New Code of Judicial Conduct for the Philippine Judiciary? A: 1. 2. 3. 4. 5. 6. Independence Integrity Impartiality Propriety Equality Competence and Diligence.
Note: The purpose of the New Code of Judicial Conduct for the Philippine Judiciary is to update and correlate the code of judicial conduct and canons of judicial ethics adopted for the Philippines, and also to stress the Philippines solidarity with the universal clamor for a universal code of judicial ethics.
CANON 1, NCJC-INDEPENDENCE
JUDICIAL INDEPENDENCE IS A PRE-REQUISITE - INDEPENDENCE TO THE CANON RULE OF 1 LAW AND A FUNDAMENTAL GUARANTEE OF A FAIR TRIAL. A JUDGE SHALL, THEREFORE, UPHOLD AND EXEMPLIFY JUDICIAL INDEPENDENCE IN BOTH ITS INDIVIDUAL AND INSTITUTIONAL ASPECTS.
Q: What is an independent Judiciary? A: It is one free from inappropriate outside influence.
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Judicial Ethics New Code of Judicial Conduct

Q: What is the independence? importance of Judicial
Note: Judges should inspire public confidence in the judiciary which can be attained only if judges are perceived by the public to be fair, honest, competent, principled, dignified and honorable. Accordingly, the first duty of judges is to conduct themselves at all times in a manner that is beyond reproach.
A: Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall, therefore, uphold and exemplify judicial independence in both its individual and institutional aspects. (Canon 1, NCJC)
Note: Individual Judicial Independence focuses on each particular case and seeks to insure his or her ability to decide cases with autonomy within the constraints of the law. It is a pre-requisite to the rule of law and a fundamental guarantee of fair trial While Institutional Judicial Independence focuses on the independence of the judiciary as a branch of government and protects judges as a class. (In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya dated September 18, 19, 20 and 21, 2007) Note: The treatment of independence as a single Canon is the primary difference between the new Canon 1 and the Canon 1 of the 1989 Code.
Judges must reject pressure by maintaining independence from, but not limited to the following: 1. Independence from public officials the public laid their confidence on the fact that the official is mentally and morally fit to pass upon the merits of their varied intentions. Independence from government as a whole avoid inappropriate connections, as well as any situation that would give rise to the impression of the existence of such inappropriate connections. Independence from family, social, or other relationships Do not sit in litigation where a near relative is a part of or counsel; be independent from judicial colleagues (Sec. 2) and avoid such actions as may reasonably tend to wake the suspicion that his social or business relations constitute an element in determining his judicial course. Independence from public opinion only guide is the mandate of law.
2.
3.
Q. What is the difference between the New Code of Judicial Conduct for the Philippine Judiciary and Code of Judicial Conduct? A. They differ in three ways: New Code of Judicial Conduct for the Code of Judicial Philippine Judiciary Conduct Focuses on the Concerned primarily institutional and with the institutional personal independence of the independence of judiciary. judicial officers Contains eight norms Contained three of conduct that guidelines explaining judges shall follow what judges should do * Canon 1 of the 1989 Code created a weaker mandate. The treatment of independence as a single canon Section 1, Canon 1, NCJC: Judges shall exercise the judicial function independently on the basis of their assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influence, inducement, pressure, threat or interference, direct or indirect, from any quarter or for any reason.
4.
Q: In a civil case submitted for a decision, Judge Corpuz-Macandog acted on it based on a telephone call from a government official telling her to decide the case in favor of the defendant, otherwise she will be removed. The judge explained that she did so under pressure considering that the country was under a revolutionary government at that time. Did the judge commit an act of misconduct? A: Yes. A judge must decide a case based on its merits. For this reason, a judge is expected to be fearless in the pursuit to render justice, to be unafraid to displease any person, interest or power, and to be equipped with a moral fiber strong enough to resist temptation lurking in her office.Here, it is improper for a judge to have decided a case based only on a directive from a government official and not on the judges own ascertainment of facts and applicable law. (Ramirez v. Corpuz-Macandog, A.M. No. R-351RTJ, Sept. 26, 1986)
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Q: Mayor C was shot by B, the bodyguard of Mayor D, inside the court room of Judge Dabalos. Consequently, an information with no bail recommendation was filed against B and D. The murder case was then scheduled for raffle but before the scheduled date, the son of Mayor C together with their counsel, Atty. Libarios, and other sympathizers staged a rally demanding immediate arrest of the accused. Judge Dabalos then issued an order without prior hearing directing the issuance of a warrant of arrest against the accused. Did the judge commit an act of misconduct? A: Yes. The judge should not issue warrant of arrest without personally evaluating the resolution of the prosecutor and its supporting evidence to establish judicial probable cause (Sec.6, Rule 112, Rules of Crim.Pro). A judge in every case should endeavor diligently to ascertain the facts and the applicable law unswayed by partisan or personal interests, public opinion or fear of criticism. Here, the judge should not have allowed himself to be swayed into issuing a warrant of arrest. (Libarios v. Dabalos A.M. No. RTJ-89-286, July 11, 1991)
Note: In the performance of their judicial duties, judges must not bow down to public opinion, and disregard editorials, columns or TV or radio commentaries on cases pending before them. The highest degree of independence is required of judges. Once a judge gives in to pressures from whatever source, that judge is deemed to have lost his independence and is considered unworthy of the position. More than just a breach of the rudiments laid down in the Code of Judicial Conduct, judges who succumb to pressure and, as a result, knowingly ignore proven facts or misapply the law in rendering a decision commit corruption and face both administrative and criminal prosecution under R.A. 3019 (Anti-Graft and Corrupt Practices Act) and Art. 204, RPC. purely academic or hypothetical questions but not to the extent of asking them to decide a case. Note: It is every judges duty to respect the individual independence of fellow judges.
Sec. 3, Canon 1, NCJC: Judges shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency. (Principle of Sub-judice)
Note: A judge is prohibited from making public statements in the media regarding a pending case so as not to arouse public opinion for or against a party. (2007 Bar Question) This section affirms that a judges restraint from exerting influence over other judicial or quasijudicial bodies is required for more than just propriety.
Q: Is the influence exerted by a judge required to be successful in order to constitute misconduct? A: No. Any attempt, whether successful or not, to influence the decision-making process of another judge, especially one who is of lower rank and over whom a judge exercises supervisory authority constitutes serious misconduct. Q: Judge Villamor, in his capacity as the executive judge, designated Judge Pitao as the acting MCTC judge of a municipality. Thereafter, Judge Villamor sent a letter through the wife of a certain accused in a criminal case, which had long been pending before the MCTC. The note is to the effect that Judge Pitao should acquit the accused but when Judge Pitao decided otherwise, Judge Villamor directed the former to forward the record to the latters sala. Judge Villamor then acquitted the accused. Did Judge Villamor commit an act of misconduct? A: Yes. A judge should avoid impropriety and the appearance of impropriety in all activities. A judge shall not influence in any manner the outcome of litigation or dispute pending before another court. This is so because such interference does not only subvert the independence of judiciary but also undermines the peoples faith in its integrity and impartiality. Here,Judge Villamors act of sending a note to Judge Pitao for the latter to decide a case in favor of the accused constitutes undue interference (Sabitsana, Jr. v. Villamor, RTJ No. 90- 474, Oct. 4, 1991)
Sec. 2, Canon 1, NCJC: In performing judicial duties, Judges shall be independent from judicial colleagues in respect of decisions which the judge is obliged to make independently. Q: May a judge consult with staff and court officials? A: No. The highest degree of independence is required of judges. He must be independent in
decision-making. However, he can ask colleagues
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Note: If the consultation is purely on an academic or hypothetical basis, and the judge does not surrender his or her independent decision making, there can be no breach of Sections 2 and 3 of Canon 1 of the New Code.
Sec. 4, Canon 1, NCJC: Judges shall not allow family, social, or other relationships to influence judicial conduct or judgment. The prestige of judicial office shall not be used or lent to advance the private interests of others, nor convey or permit others to convey the impression that they are in a special position to influence the judge. Q: What is the purpose of Sec. 4 Canon 1 of NCJC? A: It is intended to ensure that judges are spared from potential influence of family members by disqualifying them even before any opportunity for impropriety presents itself. Q: What does the term judges family include? A: 1. 2. 3. 4. 5. 6. 7. Judges spouse Son Daughter Son-in-law Daughter-in-law Other relative by consanguinity or affinity within the sixth civil degree, or Person who is a companion or employee of the judge and who lives in the judgeshousehold (NCJC of the Philippine Judiciary-Annotated, February 2007)
Sec. 5, Canon 1, NCJC: Judges shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to be free therefrom to a reasonable observer.
Note: Affirms the independence of the judiciary from the two other branches of government.
Q: Is it enough that a judge is free from inappropriate connections with executive and legislative branches of the government? A: No. Judges must also appear to be free from such to a reasonable observer.
Note: Mere congeniality between a judge and a government official may not necessarily be unethical, but it may still create the appearance of impropriety.
Q: Several employees of the city government of Quezon City were appointed and assigned at the office of the Clerk of Court-MeTC QC to assist the organic staff of the Judiciary. However, the executive judge of MeTC QC, in view of a reorganization plan, returned those employees to different offices of QC government saying that the court is already overstaffed. The judge also requested the QC Mayor to re-employ the laid off employees. Did the judge commit any improper conduct? A: Yes. An executive judge has no authority to cause the transfer of court employees as the jurisdiction to do so is lodge solely upon the SC through the Office of the Court Administrator. This is so because of the need to maintain judicial independence. Moreover, a judge shall be free from inappropriate connections with and influence from the executive and legislative branch. Here, the judge did not act independently of the LGU when she asked the Mayor of QC to re- employ the displaced employees instead of informing the SC through the OCA of the need to streamline her court of its personal needs (Alfonso v. Alonzo-Legasto, A.M. No. MTJ 94-995, Sept. 5, 2002)
Note: Judicial independence is the reason for leaving exclusively to the Court the authority to deal with internal personnel issues, even if the court employees in question are funded by the local government(Bagatsing v. Herrera, G.R. No. L-34952, July 25, 1975)
Q: When is a judges disqualification to sit in a case mandatory? A: When the judge is related to one of the parties within the sixth degree of consanguinity or affinity.
Note: Judges should ensure that their family members, friends and associates refrain from creating the impression that they are in a position to influence the judge. Judges should, therefore, at all times remind themselves that they are not in the judiciary to give out favors but to dispense justice. They should also make it clear to the members of their family, friends and associates that they will neither be influenced by anyone, nor would they allow anyone to interfere in their work.
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Sec. 6, Canon 1, NCJC: Judges shall be independent in relation to society in general and in relation to the particular parties to a dispute which he or she has to adjudicate.
Note: It is desirable that the judge should, as far as reasonably possible, refrain from all relations which would normally tend to arouse suspicion that such relations warp or bias his judgment, and prevent an impartial attitude of minds in the administration of judicial duties.Judges should not fraternize with litigants and their counsel; they should make a conscious effort to avoid them in order to avoid the perception that their independence has been compromised. A judges act of sending his staff to talk with the complainant and show copies of his draft decisions, and his act of meeting with litigants outside the office premises beyond office hours violate the standard of judicial conduct required to be observed by members of the bench. (Tan v. Rosete, A.M. No. MTJ-04-1563, Sept. 8, 2004)
1. 2. 3.
4.
Have the mastery of the principles of law, Discharge their duties in accordance with law, Are permitted to perform the duties of the office undeterred by outside influence, and Are independent and self-respecting human units in a judicial system equal and coordinate with the other two departments of the government (Borromeo v. Mariano, G.R. No. 16808, Jan. 3, 1921).
Judges must remain conscious of their character and reputation as judges and should avoid anything which will indignify their public positions and demean the institution to which they belong, in whatever atmosphere or environment they may happen to be.
Note: The judge should always be imbued with a high sense of duty and responsibility in the discharge of his obligation to promptly and properly administer justice. He must view himself as a priest for the administration of justice is akin to a religious crusade(Dimatulac v. Villon, G.R. No. 127107, Oct. 12, 1998)
Q: Are judges allowed to join religious and professional organizations? A: Yes. Section 6, Canon 1 of the NCJC does not require a judge to live a hermits life. Judges should socialize and be sensitive to social concerns and developments. They may join religious or professional organizations but their membership in these organizations should not interfere with their judicial tasks. Sec. 7, Canon 1, NCJC: Judges shall encourage and uphold safeguards for the discharge of judicial duties in order to maintain and enhance the institutional and operational independence of the judiciary. Sec. 8, Canon1, NCJC: Judges shall exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary, which is fundamental to the maintenance of judicial independence.
Note: Sections 7 and 8 of Canon 1 are intended to serve as catch-all provisions for all other acts that would guarantee the independence of the judiciary. There can be no sure guarantee of judicial independence than the character of those appointed to the Bench.
CANON 2, NCJC- INTEGRITY INTEGRITY IS ESSENTIAL NOT ONLY TO THE PROPER DISCHARGE OF THE JUDICIAL OFFICE, BUT ALSO TO THE PERSONAL DEMEANOR OF JUDGES.
Note: A judge should act with integrity and behave with integrity at all times so as to promote public confidence in the integrity of the judiciary.
Q: Is integrity required only in the discharge of judicial duties? A: No. Integrity is essential not only to the proper discharge of the judicial office but also to the personal demeanor of judges. (Canon 2, NCJC)
Note: The integrity of the judiciary rests not only upon the fact that it is able to administer justice but also upon the perception and confidence of the community that people who run the system have done justice. Justice must not be merely done but must also be seen to be done. (Panaligan v. Judge Ibay, A.M. No. TJ-06-1972, June 21, 2006) Note: In the Judiciary, moral integrity is more than a cardinal virtue, it is a necessity (Pascual v Bonifacio, AM No. RTJ-01-1625, March 10, 2003).
Q: Who are good judges? A: Good judges are described as those who:
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Judges must be models of uprightness, fairness and honesty (Rural Bank of Barotac Nuevo, Inc v. Cartagena, A.M. No. 707-MJ, July 21, 1978) Note: Under the 1989 Code, the values of INTEGRITY and INDEPENDENCE were grouped together, but the New Code of Judicial Conduct separated them to emphasize the need to maintain a life of PERSONAL and PROFESSIONAL INTEGRITY in order to properly carry out their judicial functions.
A: Yes. A judge must take care not only to remain true to the high ideals of competence and integrity his robe represents, but also that he wears one in the first place. (Chan v. Majaducan A.M. No. RTJ-02-1697 October 15, 2003) Sec. 2, Canon 2,NCJC: The behavior and conduct of judges must reaffirm the peoples faith in the integrity of the Judiciary. Justice must not merely be done, but must also be seen to be done. A judge has the duty to not only render a just and impartial decision, but also render it in such a manner as to be free from any suspicion as to its fairness and impartiality, and also as to the judges integrity. While judges should possess proficiency in law in order that they can completely construe and enforce the law, it is more important that they should act and behave in such a manner that the parties before them should have confidence in their impartiality. (Sibayan-Joaquin v. Javellana, A.M. No. RTJ-001601, Nov. 13, 2001)
Note: A judge must not only be honest but must also appear to be so; not only be a good judge, but also a good person. (Dawa v. De Asa, A.M. No. MTJ-981144, July 22, 1998)
Q: What is the presumption as regards judges? A: Judges are presumed honest and, are men of integrity, unless proven otherwise. Section 1, Canon 2, NCJC: Judges shall ensure that not only is their conduct above reproach, but that it is perceived to be so in the view of a reasonable observer. Q: Is the maintenance of the courts integrity the sole duty of the judge? A: No, it is also the duty of court personnel to see to it that its integrity is unblemished.
Note: A judges personal behavior, both in the performance of his duties and in his daily life, must be free from any appearance of impropriety as to be beyond reproach.
Q: Judge Ferdinand Marcos of RTC Cebu is married to Rotilla with whom he begot 2 children. However, during a Fun Run sponsored by Philippine Judges Association (PJA), Judge Marcos appeared with a woman other than his wife whom he even introduced to Justice Davide as his living partner. Should the judge be disciplined? A: Yes. The Code of Judicial Conduct requires a judge to be the embodiment of integrity, and to avoid appearance of impropriety in all activities. Here, Judge Marcos conduct of flaunting his mistress is a conduct unbecoming of a judge. By living with a woman other than his legal wife, Judge Marcos has demonstrated himself to be wanting in integrity, thus, unfit to remain in office and continue discharging the functions of a judge (Re: Complaint of Mrs. Rotilla A. Marcos and Her Children against Judge Ferdinand J. Marcos, RTC, Br. 20, Cebu City, A.M. No. 97-2-53 RTC, July 6, 2001). Q: May a judge be admonished for not wearing the judicial robe in the performance of judicial functions?
Q: Justice Mariano Del Castillo was charged with plagiarism, twisting of cited materials, and gross neglect in connection with the decision he wrote for the court in G.R. No. 162230, entitled Vinuya v. Romulo. Petitioners, members of the Malaya Lolas Organization, seek reconsideration of the decision of the Court dated October 12, 2010 that dismissed the said complaint. Petitioners claim that the Court has by its decision legalized or approved of the commission of plagiarism in the Philippines. Should the respondent justice be held guilty for plagiarism? A: No. A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of plagiarism even if ideas, words or phrases from a law review article, novel thoughts published in a legal periodical or language from a partys brief are used without giving attribution. Thus judges are free to use whatever sources they deem appropriate to resolve the matter before them, without fear of reprisal. This exemption applies to judicial writings intended to decide cases for two reasons: the judge is not writing a literary work and, more importantly, the purpose of the writing is to resolve a dispute. As a result, judges adjudicating cases are not subject to a claim of legal plagiarism.
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Although as a rule, practicing lawyers receive compensation for every pleading or paper they file in court or for every opinion they render to clients, lawyers also need to strive for technical accuracy in their writings. They should not be exposed to charges of plagiarism in what they write so long as they do not depart, as officers of the court, from the objective of assisting the Court in the administration of justice. (In matter of the Charges of Plagiarism etc.. Against Associate Justice Mariano C. Del Castillo, A.M. No. 10-7-17-SC, February 8, 2011) Sec. 3, Canon 2, NCJC: Judges should take or initiate appropriate disciplinary measures against lawyers or court personnel for unprofessional conduct of which the judge may have become aware. Q: Can a judge punish lawyers and court personnel for their misbehavior? A: Yes. A judge may summarily punish any person including lawyers and court personnel, for direct contempt for misbehavior committed in the presence of or so near a court or a judge as to obstruct or interrupt the proceedings before the same. (Rule 71, Revised Rules of Court) He may also punish any person for indirect contempt after appropriate charge and hearing, for acts enumerated under Section 3, Rule 71 of the Rules of Court. Q: What is the judges duty with respect to court employees? A: A judge should constantly keep a watchful eye on the conduct of his employees. His constant scrutiny of the behavior of his employees would deter any abuse on the part of the latter in the exercise of their duties. The slightest breach of duty by and the slightest irregularity in the conduct of court officers and employees detract from the dignity of the courts and erode the faith of the people in the judiciary. (Buenaventura v. Benedicto, A.C. No. 137-5, Mar. 27, 1971)
Note: Judges should not be lenient in the administrative supervision of employees. As an administrator, the judge must ensure that all court personnel perform efficiently and promptly in the administration of justice. (Ramirez v. CorpuzMacandog, A.M. No. R-351-RTJ, Sept. 26, 1986) All court personnel, from the lowliest employees to the clerks of court, are involved in the dispensation of justice like judges and justices, and parties seeking redress from the courts for grievances look upon them also as part of the judiciary. In performing their duties and responsibilities, court personnel serve as sentinels of justice, that any act of impropriety they commit immeasurably affects the honor and dignity of the judiciary and the people's confidence in the judiciary. They are, therefore, expected to act and behave in a manner that should uphold the honor and dignity of the judiciary, if only to maintain the peoples confidence in the judiciary. (Guerrero v. Ong, A.M. No. P-09-2676, Dec. 16, 2009)
Q: Can a judge dismiss court personnel? A: No. The power to dismiss a court employee is vested in the Supreme Court. (Dailay-Papa v. Almora, A.M. Nos. 543-MC and 1525-MJ, Dec. 19, 1981) Q: While Judge Tuparin was in his chambers dictating an order to a stenographer, two lawyers who were in the courtroom waiting for the start of the session almost came to blows as a result of a heated argument. Tuparin came out of his chambers and after identifying the lawyers involved in the commotion promptly declared them in contempt of court. Was the action of Judge Tuparin proper? A: No. The act committed by the two lawyers was indirect contempt violative of the rule punishing any improper conduct tending directly or indirectly, to impede, obstruct, or degrade the administration of justice, since the judge was then engaged in dictating an order before the morning session was called. The act of the two lawyers constituted obstruction of the administration of justice, which was indirect contempt. Accordingly, they could only be punished after notice and hearing. CANON 3, NCJC -IMPARTIALITY IMPARTIALITY IS ESSENTIAL TO THE PROPER DISCHARGE OF THE JUDICIAL OFFICE. IT APPLIES NOT ONLY TO THE DECISION ITSELF BUT ALSO TO THE PROCESS BY WHICH THE DECISION IS MADE.
Q: Is impartiality applicable only to the decision rendered by the judge? A: No. Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made. (Canon 3, NCJC)
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Q: What is the principle of cold neutrality of an impartial judge? A: A judge should not only render just, correct, and impartial decision but should do so in a manner free from suspicion as to his fairness, impartiality and integrity. This is an indispensable requisite of due process. (Rallos v. Gako, A.M. No. RTJ-98-1484, Mar. 17, 2000)
Note: A judge has both the duty of rendering a just decision and the duty of doing it in a manner completely free from suspicion as to his fairness and as to his integrity.
A. No. For a judge to be inhibited, allegations of partiality and pre-judgment must be proven by clear and convincing evidence. Here, mere allegation that the judge arbitrarily issued the TRO without presenting evidence showing bias on his part is not sufficient. While Judge Santiago acted in excess of his jurisdiction when he issued the TRO for such should only be enforceable within his territorial jurisdiction, such error may not necessarily warrant inhibition at most it is correctible by certiorari(Dimo Realty & Development, Inc. v. Dimaculangan, G.R. No. 130991, Mar. 11, 2004). Q: What should the complainant show in order to sustain the charge of bias on the part of the judge? A: The complainant must show that the resulting opinion of the judge is based on extra-judicial source. Q: What is the extra-judicial source rule?
Sec. 1, Canon 3,NCJC: Judges shall perform their judicial duties without favor, bias or prejudice.
Note: It is the duty of all judges not only to be impartial but also to appear impartial.
Q: Who has the burden of proof to show bias or prejudice? A: The burden of proof lies with the complainant to show that there is bias sufficient to be a ground for inhibition.
Note: There is Bias or Prejudice when the resulting opinion is based upon an extrajudicial source: that is, some influence other than the facts and law presented in the courtroom.
A: It means that the decision is based on some influence other than the facts and law presented in the courtroom. Q: A motion to inhibit Judge Dicdican was filed on the ground of partiality and bias on his part for allegedly denying a motion to hear affirmative defenses thereby denying the movant the opportunity to be heard. Should the judge be inhibited? A: No. Judge Dicdican cannot be charged with bias and partiality, merely on the basis of his decision not to grant a motion for a preliminary hearing. Allegations and perceptions of bias from the mere tenor and language of a judge are insufficient to show pre-judgment. Moreover, as long as opinions formed in the course of judicial proceedings are based on the evidence presented and the conduct observed by the judge, such opinion even if later found to be erroneous on appeal or made with grave abuse of discretion on certiorari will not necessarily prove personal bias or prejudice on the part of the judge. To allow inhibition for such reason would open floodgates to abuse. Here, the denial of the motion to hear affirmative defenses is based on the Rules of Court which provides that preliminary hearing of defenses is discretionary, hence the judge cannot be charged with partiality on the basis of such decision. (Gochan v. Gochan, G.R. No. 143089, Feb. 27, 2003)
Q: What is the degree of proof required to prove bias and prejudice on the part of the judge? A: The complainant must prove the same by clear and convincing evidence since allegations of bias are quite serious. Mere allegations are not sufficient to constitute a violation of the rule. Q: A filed an action for specific performance with the RTC of Quezon City, presided by Judge Santiago, against X corporation asking for the delivery of the title of 1 subdivision lot in Batangas which lot was given to him in payment for his services as geodetic surveyor. Meanwhile X Corporation filed with MTC of Batangas an action for an unlawful detainer against certain lot buyers on motion of A. Judge Santiago issued TRO against X Corp. and Judge of MTC and enjoining the latter from proceeding with the case. X Corp. now filed a motion to inhibit the judge on the ground that he arbitrarily issued such TRO, but without presenting evidence showing partiality on the part of the judge. Should the judge be inhibited?
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Sec. 2, Canon 3, NCJC: Judges shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the Judiciary.
Note: No judge should handle a case in which he might be perceived, rightly or wrongly, to be susceptible to bias and impartiality. His judgment must not be tainted by even the slightest suspicion of improbity or preconceived interest. The rule is aimed at preserving at all times the faith and confidence in courts of justice by any party to the litigation. (Urbanes, Jr. v. C.A., G.R. No. 117964, Mar. 28, 2001)
reconsideration, absolving Banco Filipino from paying the expenses of production of documents, and suggesting to Banco Filipino what evidence to present to prove its case, transgressed the boundaries of impartiality. Thus, the judge should inhibit himself. (Ty v. Banco Filipino Savings and Mortgage Bank, et. al., G.R. Nos. 149797-98, Feb. 13, 2004) Q: Can a trial judge ask questions from witnesses? A: It is within the sound discretion of the trial judge to ask questions from witnesses, if only to clarify what may appear to him to be vague points in the narration. Questions designed to avoid obscurity in the testimony or to elicit additional relevant evidence are not improper. The judge may aptly need to intervene in the presentation of evidence in order to expedite the resolution of a case and prevent unnecessary waste of time. Judges, however, should be extremely careful so as not to be misunderstood, and they must refrain from making comments, remarks or suggestions that could lead to even the slightest suspicion that he is thereby unduly assisting a party or counsel. (Paco v. Quilala, A.M. No. RTJ-02-1699, Oct. 15, 2003)
Note: In disposing of a criminal case, a judge should avoid appearing like an advocate for either party. It is also improper for the judge to push actively for amicable settlement against the wishes of the complainant. A judges unwelcome persistence makes the judge vulnerable to suspicions of favoritism. (Montemayor v. Bermejo, Jr.,A.M. No. MTJ-04-1535, Mar. 12, 2004) Note: Stating to his court staff and the Public Assistance Office (PAO) lawyer that he is proaccused particularly concerning detention prisoners, the judge opened himself up to suspicion regarding his impartiality. (OCA v. Judge Floro, A.M. No. RTJ-99-1460, March 31, 2006)
Q: When is there undue interference by the judge? A: There is undue interference where the judges participation in the conduct of the trial tends to build or to bolster a case of one of the parties. Q: Banco Filipino filed a complaint for reconveyance of property against Ty and Tala Realty Services Corp., which complaint was dismissed on the ground of lack of jurisdiction. However, on motion for reconsideration filed by Banco Filipino, the case was reinstated and the judge even relieved Banco Filipino from its obligation to prove service of its motion for reconsideration and presumed actual receipt of the same by the other party. Thereafter, the judge directed the respondents to present certain documents within a certain period of time despite failure of Banco Filipino to tender the costs for such production and inspection. Tala then filed a motion for inhibition but the same was denied by the judge. Did the judge commit any improper conduct? A: Yes. The rule is that a judge may not be legally prohibited from sitting in litigation, but when circumstances appear that will induce doubt to his honest actuations and probity in favor of either party, or incite such state of mind; he should conduct a careful self-examination. He should exercise his discretion in a way that the people's faith in the courts of justice is not impaired. The better course for the judge under such circumstances is to disqualify himself. That way, he avoids being misunderstood; his reputation for probity and objectivity is preserved. What is more important, the ideal of impartial administration of justice is lived up to. Here, the judge, by assuming actual receipt by the respondents of proof of service of the motion for
Sec. 3, Canon 3,NCJC: Judges shall, so far as is reasonable, so conduct themselves as to minimize the occasions on which it will be necessary for them to be disqualified from hearing or deciding cases. Q: What is meant by duty to sit? A: It means that a judge must ensure that he will not be unnecessarily disqualified from a case. Q: May a judge inhibit himself as he pleases?
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A: No. A decision to inhibit must be based on good, sound or ethical grounds, or for just and valid reasons. It is not enough that a party cast some tenuous allegations of partiality at the judge. Q: What is the Rule of Necessity? A: It states that a judge is not disqualified to sit in a case where there is no other judge available to hear and decide the case. Furthermore, when all judges will be disqualified as a result, it will not be permitted to destroy the only tribunal with the power in the premises. The doctrine operates on the principle that a basic judge is better than no judge at all. It is the duty of the disqualified judge to hear and decide the case regardless of objections or disagreements. (Parayno v. Meneses, G.R. No. 112684, Apr. 26, 1994) Sec. 4, Canon 3, NCJC: Judges shall not knowingly, while a proceeding is before or could come before them, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process. Nor shall judges make any comment in public or otherwise that might affect the fair trial of any person or issue.
Note: A judges language, both written and spoken, must be guarded and measured, lest the best of intentions be misconstrued. (Fecundo v. Berjamen, G.R. No. 88105, December 18, 1989)
A: Yes. The judges statement in the decision acquitting Bayongan to the effect that the crime was committed by Martinez renders it impossible for the judge to be free from suspicion that in deciding the case he will be biased. (Martinez v. Gironella, G.R. No. L-37635, July 22, 1975) Q: Justice Antonio Carpio penned a decision regarding the invalidity of the amended joint venture agreement between Public Estates Authority (PEA) and Amari Coastal Bay Development Corporation saying that the agreement is unconstitutional as PEA cannot transfer ownership of a reclaimed land to a private corporation. Amari now filed a motion to inhibit Justice Carpio on the ground of bias and pre-judgment allegedly because he had previously wrote in his column in Manila Times a statement to the effect that the law requires public bidding of reclaimed projects and that the PEA-Amari contract is flawed for it was not bid by the PEA. Decide on the motion. A: The motion to inhibit must be denied for three reasons: 1. The motion to inhibit must be denied if filed after a member of the court had already rendered his opinion on the merits of the case. Here,the motion was filed after Justice Carpio had already rendered a decision; The ratio decidendi of the decision was not based on his statements on the column. Here, the decision was based on constitutional grounds and not in the absence of public bidding; and Judges and justices are not disqualified from participating in a case just because they have written legal articles on the law involved in the case. (Chavez v. PEA, G.R. No. 133250, May 6, 2003)
2.
Q: What is the reason for the rule? A: This Section warns judges against making any comment that might reasonably be expected to affect the outcome of the proceedings before them; or those that the judge may later decide but not yet before him; or "impair the manifest fairness of the process. Q: A murder case was filed against Martinez, Duclan and Bayongan. As the first two were not apprehended, trial proceeded with respect to Bayongan. Thereafter, Judge Girronella rendered a decision acquitting Bayongan saying that he had no participation in the commission of the crime as the crime was committed by Martinez. Subsequent to the acquittal, Martinez surrendered and was arraigned before the same court presided by Judge Girronella. A Motion for inhibition was then filed on the ground of partiality saying that the judge has already formed an opinion as to who committed the crime. Should the judge be inhibited?
3.
Q: Are judges absolutely prohibited from making comments? A: No. Not all comments are impermissible. Judges may express their open-mindedness regarding a pending issue in cases where the judges comments do not necessarily favor one side over the other.
Note: Judges should avoid side remarks, hasty conclusions, loose statements or gratuitous utterances that suggest they are prejudging a case. Judges should be aware that the media might consider them a good and credible source of opinion
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or ideas, and therefore should refrain from making any comment on a pending case. Not only is there danger of being misquoted, but also of compromising the rights of the litigants in the case. serious misconduct and ordered dismissed from the bench before he was able to rescue himself(Oktubre v. Velasco A.M. No. MTJ-0202-1444, July 20, 2004)
Sec. 5, Canon 3, NCJC: Judges shall disqualify themselves from participating in any proceeding in which they are unable to decide the matter impartially or in which it may appear to a reasonable observer that they are unable to decide the matter impartially. Q: What does the phrase any proceedings include?
4.
The judge served as executor, administrator, guardian, trustee or lawyer in the case or matter in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein (Sec. 5(d), Canon 3, NCJC);
Note: The restriction extends to judges who served as lawyers in closely related cases.
5. A: Such proceedings include, but are not limited to instances where: 1. The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings (Sec. 5(a), Canon 3, NCJC);
Note: The rule also requires disqualification if a judge has outside knowledge of disputed facts. To be a ground for disqualification, the knowledge must be obtained extra-judicially like out-of-court observations. This prohibition also disallows extra-judicial research on the internet. Litigants are entitled to a judge who will decide on the merits of the facts presented.
The judges ruling in a lower court is the subject of review (Sec. 5(e), Canon 3, NCJC);
Note: An associate justice of the Court of Appeals refused to inhibit himself from reviewing the decision in a case which he had partially heard as a trial judge prior to his promotion, on the ground that the decision was not written by him. The Supreme Court upheld his refusal, but nevertheless commented that he "should have been more prudent and circumspect and declined to take on the case owing to his earlier involvement in the case. The Court has held that a judge should not handle a case in which he might be perceived, rightly or wrongly, to be susceptible to bias and prejudice. (Sandoval v. CA, G.R. No. 106657, Aug. 1, 1996)
2.
The judge previously served as a lawyer or was a material witness in the matter in controversy(Sec. 5(b), Canon 3, NCJC);
Note: A judge may be disqualified if he was formerly associated with one of the parties or their counsel. A judge who previously notarized the affidavit of a person to be presented as a witness in a case before him shall be disqualified from proceeding with the case.
6. The judge is related by consanguinity or affinity to a party litigant within the 6th civil degree or to counsel within the 4th civil degree (Sec. 5(f), Canon 3, NCJC); or
Note: A preliminary injunction issued by a judge in favor of his sister before inhibiting himself was found reprehensible. (Hurtado v. Judajena, G.R. No. L-40603, July 13, 1978) No judge should preside in a case which he is not wholly free, disinterested, impartial and independent. (Garcia v. De La Pena. A.M. No.MTJ-92-637. February 9, 1994) 7.
3.
The judge, or a member of his or her family, has an economic interest in the outcome of the matter in controversy (Sec. 5(c), Canon 3, NCJC);
A municipal judge who filed complaints in his own court for robbery and malicious mischief against a party for the purpose of protecting the property interests of the judges co-heirs, and then issued warrants of arrest against the party, was found guilty of
The judge knows that his or her spouse or child has a financial interest as heir, legatee, creditor, fiduciary or otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceedings. (Sec. (g), Canon 3, NCJC)
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Note: This rule is intended to ensure judges impartiality by preventing situations in which a judge must consider familial interests in the conflicts before him or her. If the public is aware of a family members financial interest, the public may question the judges impartiality
cognizance of the petition is improper. (Villaluz v. Mijares, A.M. No. RTJ -98-1402 288, Apr. 3, 1998)
Note: A judge improperly presided over the preliminary investigation of a criminal complaint wherein the complaining witness was his nephew. The high court held that the judge should have inhibited himself, because while conducting preliminary investigation may not be construed strictly as sitting in a case, the underlying reason behind his disqualification under the code of judicial conduct and Sec. 1 of Rule 137 are the same. (Perez v. Suller, A.M. No. MTJ-94-436, Nov. 6, 1995) Note: Judges no longer conduct preliminary investigations. (A.M. No. 05-8-26-SC, Oct.3, 2005)
Q: When Atty. Rojas was appointed as a judge, he inherited a criminal case in which he acted as prosecutor. He explained that his delay in inhibiting himself from presiding on that case was because it was only after the belated transcription of the stenographic notes that he remembered that he handled that case. He also says that the counsels did not object and he never held full-blown hearings anyway. Should Judge Rojas be reprimanded? A: Yes. The Rules of Court prevent judges from trying cases where they acted as counsel without the consent of the parties. This prevents not only a conflict of interest but also the appearance of impropriety on the part of the judge. Here, the judge should not have taken part in the proceeding as his impartiality will naturally be questioned considering that he previously handled the case as prosecutor. He should administer justice impartially & without delay. The prohibition does not only cover hearings but all judicial acts (e.g. orders, resolutions) some of which, Judge Rojas did make.(Re: Inhibition of Judge Eddie R. Rojas, A.M. No. 98-6-185-RTC, Oct. 30, 1998) Q: Judge Mijares was charged with grave misconduct for taking cognizance and deciding a special proceeding for correction of entry in the record of her grandson, notwithstanding such relationship. It was also alleged that the judge dispensed with the publication requirement in said proceeding. In her answer, Judge Mijares contended that the prohibition provided for under the Code does not apply to special proceeding which is not controversial in nature and since she does not have any pecuniary interest in the case. Is the contention correct? A: No. A judge who is related to a party within the 6th degree of consanguinity is mandated to inhibit himself from hearing the case notwithstanding lack of pecuniary interest in the case. This is so because lack of such interest does not mean that she can already be free from bias and partiality in resolving the case by reason of her close blood relationship as evident from the fact that here, she waived the publication requirement in order to save the petitioner from the payment of publication fee. Thus, the judges taking
Q: What degree of compliance is required by the rule under Canon 3, Section 5 of NCJC? A: Strict compliance of the rule is required so as to protect the rights of the parties and assure an impartial administration of justice, as well as to prevent erosion of the people's confidence in the judiciary. (Marfil v. Cuachon, A.M. No. 2360-MJ, Aug. 31, 1981) Q: Are the grounds for disqualification of a judge enumerated under Sec. 5 of Canon 3 exclusive? A: No. The provision provides that it is not limited to the grounds therein provided. Sec. 6, Canon 3, NCJC: A judge disqualified as stated above may, instead of withdrawing from the proceeding, disclose on the records the basis of disqualification. If, based on such disclosure, the parties and lawyers, independently of the judges participation, all agree in writing that the reason for inhibition is immaterial or unsubstantial, the judge may then participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceedings. Q: What are the types of disqualification? A: 1. 2. Mandatory or compulsory disqualification Voluntary disqualification or inhibition
Note: A judge may, in the exercise of his sound discretion, disqualify himself, for just and valid reasons other than those mentioned under Rule 137 of the Rules of Court (2nd Paragraph of Sec. 1, Rule 137, RRC).
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Q: What is inhibition? A: An act when a judge personally prevents himself from taking cognizance of the case. This is made through a written petition to inhibit which shall state the grounds for the same. The explanation of the judge whether or not to take cognizance of the case must also be in writing.
Note: If the judge inhibits himself from taking cognizance of the case, the same cannot be appealed. However, the judge should not immediately inhibit himself. He should make a careful examination by first taking into consideration the following: 1. General consideration whether or not peoples faith in the judicial system will be impaired Special consideration He must reflect on the probability that the losing party will nurture at the back of his mind that he tilted the scale of justice
3.
When he has been an executor, guardian, administrator, trustee, or counsel; or When he has presided in an inferior court where his ruling or decision is subject to review, without the written consent of the parties. (Rule 137, RRC)
4.
Q: When may a judge voluntarily inhibit himself? A: The judge may in his discretion inhibit himself, for just and valid reasons other than the grounds for mandatory disqualification. The rule on voluntary disqualification or inhibition is discretionary upon the judge on the basis of his conscience. This leaves the discretion to the judge to decide for himself questions as to whether he will desist from sitting in a case for other just and valid reasons with only his conscience to guide him, unless he cannot discern for himself his inability to meet the test of cold neutrality required of him, in which event the appellate court will see to it that he disqualifies himself. A decision to disqualify himself is not conclusive and his competency may be determined on application for mandamus to compel him to act. Judges decision to continue hearing a case in which he is not legally prohibited from trying notwithstanding challenge to his objectivity may not constitute reversible error. Q: Does the filing of an administrative case against a judge disqualify him from sitting in a case? A: No, it does not automatically disqualify him. It must be shown that there are other acts or conducts by the judge which constitute a ground for his disqualification. Q: May mandamus lie to compel a judge to inhibit himself? A: Yes, a judge may by mandamus be compelled to act on questions regarding his disqualification from sitting in a case. Q: When should the petition to disqualify be filed? A: The petition to disqualify a judge must be filed before rendition of the judgment, and cannot be raised on appeal. Otherwise, the parties are deemed to have waived any objection regarding the impartiality of the judge.
2.
Q: What are the distinctions disqualification and inhibition? A: DISQUALIFICATION There are specific grounds enumerated under the rules of court for disqualification. The judge has no discretion; mandatory
between
INHIBITION The rule only provides broad basis for inhibition. The rule leaves the matter to the judges sound discretion
Note: The second paragraph of Section 1, Rule 137 does not give the judge the unfettered discretion to decide whether or not he will desist from hearing a case. The inhibition must be for just and valid causes. The mere imputation of bias or partiality is not enough ground for a judge to inhibit, especially when the same is without any basis. (People v. Kho G.R. No. 139381, April 20, 2001)
Q: What are the grounds for mandatory disqualification? A: 1. When he, or his wife, or child is pecuniarily interested as heir, legatee, creditor, or otherwise; When he is related to either party within th the 6 degree of consanguinity or affinity or to counsel within the 4th civil degree;
2.
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Q: A judge rendered a decision in a criminal case finding the accused guilty of estafa. Counsel for the accused filed a motion for reconsideration which was submitted without arguments. Later, another lawyer entered his appearance for the accused. The judge issued an order inhibiting himself from further sitting in the case because the latter lawyer had been among those who recommended him to the bench. Can the judges voluntary inhibition be sustained? A: The judge may not voluntarily inhibit himself by the mere fact that a lawyer recommended him to the bench. In fact, the appearance of said lawyer is a test as to whether the judge can act independently and courageously in deciding the case according to his conscience. Inhibition is not allowed at every instance that a friend, classmate, associate or patron of a presiding judge appears before him as counsel for one of the parties to a case. Utang na loob, per se, should not be a hindrance to the administration of justice. Nor should recognition of such value in Philippine society prevent the performance of ones duties as judge. However, in order to avoid any suspicion of partiality, it is better for the judge to voluntarily inhibit himself. (Query of Executive Judge Estrella T. Estrada, Regional Trial Court of Malolos, Bulacan, on the Conflicting Views of Regional Trial Court Judges Masadao and Elizaga Re: Criminal Case No. 4954-M, A.M. No. 87-9-3918-RTC October 26, 1987) Q: Does a judges active participation during the hearing of the writ of preliminary injunction amount to an evident display of his bias and partiality in favor of the private respondents and should he therefore disqualify himself from further hearing the civil case? A: No. Mere intervention of the respondent judge during the hearing of preliminary injunction by simply asking the materiality of a question directed upon the witness and ruling against the petitioners are within the prerogatives and powers of the judge. The fact that the judge asked questions in the course of the trial does not make him a biased judge (Hizon v. DelaFuente, G.R. No. 152328, Mar. 23, 2004). Q: What is remittal of disqualification? A: A judge disqualified may, instead of withdrawing from the proceeding, disclose in the records the basis of disqualification. If, based on such disclosure, the parties and lawyers, independently of the judges participation, all agree in writing that the reason for the inhibition is immaterial or insubstantial; the judge may then participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceedings. (Sec. 6, Canon 3, NCJC) Q: What are the requirements for a judge to continue hearing a case despite the existence of reasons for disqualifications? A: 1. The bona fide disclosure to the parties in litigation; and The express acceptance by all the parties of the cited reason as not material or substantial. CANON 4, NCJC- PROPRIETY PROPRIETY AND THE APPEARANCE OF PROPRIETY ARE ESSENTIAL TO THE PERFORMANCE OF ALL THE ACTIVITIES OF A JUDGE.
Note: The judges own perception of motives is not relevant when considering appearance of impropriety.
2.
Sec. 1, Canon 4, NCJC: Judges shall avoid impropriety and the appearance of impropriety in all of their activities.
Note: The public holds judges to higher standards of integrity and ethical conduct than lawyers and other persons not invested with public trust.
Q: What does the Code prohibit? A: It prohibits not only actual impropriety but even the mere appearance of impropriety. Q: When can one say that there is an appearance of impropriety? A: When the conduct of a judge would create in reasonable minds a perception that the judges ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.
Note: Acts done by a judge which are not illegal may still constitute a violation of this rule.
Q: Cite examples of acts of a judge which are not illegal but will constitute a violation of this rule.
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A: 1. The act of a judge of hearing cases on a day when he is supposed to be on official leave. (Re: Anonymous complaint Against Judge EdmundoAcua, A.M. No. RTJ-041891, July 28, 2005) Photograph showing the judge and a subordinate coming out of a hotel together even if there was no clear evidence of sexual congress between them is enough to give rise to the appearance of impropriety that the code strongly warns against. (Liwanag v. Lustre, A.M. No. MTJ-98-1168, Apr. 21 1999) Joking remark made by a judge to a litigant suggesting that the litigant prove he harbored no ill feelings towards the judge. (Co v. Plata, A.M. No. MTJ-03-1501, Mar. 14, 2005) influence the outcome of his brothers election protest, it cannot be denied that his presence in the courtroom during the hearing of his brothers case would immediately give cause for the community to suspect that his being a colleague in the judiciary would influence the judge trying the case to favor his brother. (Vidal v. Judge Dojillo Jr., A.M. No. MTJ-05-1591, July 14, 2005)
Note: The Judges act in riding in defendants car deserves the stern probation of the Court. By such act, he openly exposed himself and the office he holds to suspicion, thus impairing the trust and faith of the people in the administration of justice. A judges official conduct should be free from the appearance of impropriety and his personal conduct and behavior should be beyond reproach. (Spouses Cabreana v. Avelino A.M. No. 1733 CFI September 30, 1981)
2.
3.
Q: Judge Lee was charged with conduct unbecoming of a judge for habitually using vulgar words especially when solemnizing marriage. It was alleged that in a certain marriage ceremony he made a comment that the bride and the groom should sexually satisfy each other so that his or her partner will not look for another. In his answer the judge contended that as solemnizing officer, it was his duty to so advice the couple, and his lecture about sex was intended for purposes of family planning and to forewarn the parties as to the cause of marital failure. Should the judge be disciplined? A: Yes. A judge shall avoid impropriety and appearance of impropriety in all his activities. Here, the advice of the judge using vulgar words during a wedding is not to be expected of a judge. Such gutter-language is even rarely heard in slums. When used by a judge, respect for the entire judiciary plummets to the levels where the people would begin to doubt the moral standards of judges and their capacity and fitness to dispense justice. (Hadap v. Lee, A.M. No. 1665MJ, June 29, 1982) Q: During the hearing of an election protest filed by the brother of Judge Dojillo, the latter sat beside the counsel of his brother allegedly to give moral support. Did the judge commit any improper conduct? A: Yes. The judge violated the rule on impropriety under the NCJC Sec 1 Canon 4 for even if he did not intend to use his position as a judge to
Q: Judge Duque of the RTC was charged with Impropriety, Corruption and Gross Misconduct. Reyes alleged that she was a party-inintervention in Land Registration filed by the Philippine Savings Bank against the spouses Choi. In a Decision, Judge Duque granted the motion for the issuance of a writ of possession in favor of the bank. Complainant Reyes filed an Urgent Petition for Lifting and Setting Aside of Writ of Possession and Quashal of Notice to Vacate claiming that she bought the subject property from the spouses Choi and that she was in actual possession of the property with full knowledge of the bank. At the hearing, Atty. Ubana, the lawyer of Reyes, introduced her to Judge Duque who allegedly gave Reyes 30 days to settle matters with the bank. She was unable to re-negotiate with the bank. Reyes then allegedly received a phone call from Judge Duque and he instructed Reyes to go to his house and bring some money in order that he can deny the pending motion to break open. When she already had the money, she went to his house. The son of Judge Duque opened the gate. At his house, Judge Duque demanded money from her. Another incident happened, whereby Reyes went to the house of Judge Duque for the payment of a sum of money. Judge Duque allegedly scolded her for not bringing the whole amount. Judge Duque then locked the main door of his house and asked Reyes to step into his office. Judge Duque held the waist of Reyes, embraced and kissed her. Reyes tried to struggle and free herself. Judge Duque raised her skirt, opened her blouse and sucked her breasts. He touched her private parts and attempted to have
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sexual intercourse with Reyes. Reyes shouted for help but the TV was too loud. As a desperate move, Reyes appealed to Judge Duque saying: kung gusto mo, huwag dito. Sa hotel, sasama ako sayo. Judge Duque suddenly stopped his sexual advances and ordered Reyes to fix her hair. Is the respondent judge guilty of impropriety and gross misconduct? A: Yes. Judges should avoid impropriety and the appearance of impropriety in all of their activities. Judges should conduct themselves in a way that is consistent with the dignity of the judicial office. Judges, like any other citizen, are entitled to freedom of expression, belief, association and assembly, but in exercising such rights, they should always conduct themselves in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary. The conduct of Judge Duque fell short of the exacting standards for members of the judiciary. He failed to behave in a manner that would promote confidence in the judiciary. Considering that a judge is a visible representation of the law and of justice, he is naturally expected to be the epitome of integrity and should be beyond reproach. Judge Duques conduct indubitably bore the marks of impropriety and immorality. He failed to live up to the high moral standards of the judiciary and even transgressed the ordinary norms of decency of society. Had Judge Duque not retired, his misconduct would have merited his dismissal from the service. (Reyes v. Duque, A.M. No. RTJ-08-2136 , September 21, 2010) Sec. 2, Canon 4, NCJC: As a subject of constant public scrutiny, judges must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular, judges shall conduct themselves in a way that is consistent with the dignity of the judicial office.
Note: Membership in the judiciary circumscribes ones personal conduct and imposes upon him certain restrictions, the faithful observance of which, is the price one has to pay for holding such a distinguished position. Accordingly, a magistrate of the law must comport himself in a manner that his conduct must be free of a whiff of impropriety, not only with respect to the performance of his official duties, but also to his behavior outside his sala and as a private individual. His conduct must be able to withstand the most searching public scrutiny, for the ethical principles and sense of propriety of a judge are essential to the preservation of the peoples faith in the judicial system lest public confidence in the judiciary would be eroded by the incompetent, irresponsible and negligent conduct of judges. (Bayaca v. Judge Ramos, A.M. No. MTJ-07-1676, Jan. 29, 2009)
Q: What is a dignified conduct? A: Dignified conduct is best described as conduct befitting men and women possessed of temperance and respect for the law and for others. Q: Judge Gonzales together with his two male friends went to the house of A and asked the two girls who were then boarding in As house to accompany his two male friends and take a stroll in the beach. When the girls refused, the judge admonished them. Consequently, the judge was charged with conduct unbecoming of a judge. Will the action prosper? A: Yes. A judge should so comport himself as not to degrade or bring embarrassment to his office. Here, Judge Gonzales act of imposing his will on the complainants constitutes conducts unbecoming of a judge who should be civil, humble and considerate of the rights of others. (Mariano v. Gonzales, A.M. No. 2180-MJ 114, May 31, 1982)
Note: In every litigation, the manner and attitude of a judge are crucial to everyone concerned. It is not for him to indulge or even to give the appearance of catering to the at-times human failing of yielding to first impressions. He is to refrain from reaching hasty conclusions or prejudging matters. It would be deplorable if he lays himself open to the suspicion of reacting to feelings rather than to facts, of being imprisoned in the net of his own sympathies and predilections. His language, both written and spoken, must be guarded and measured, lest the best intentions be misconstrued. He should avoid such action as would subject him to suspicion of interest in a case in his court. It is of utmost importance that a judge must preserve the trust and confidence reposed in him by the parties as an impartial, unbiased and dispassionate dispenser of justice. When he conducts himself in a manner that gives rise, fairly or unfairly, to perceptions of bias, such faith and confidence are eroded. His decisions, whether right or wrong, will always be under suspicion of irregularity. (Abesa v. Judge Nacional, A.M. No. MTJ-05-1605, June 8, 2006)
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Finally, Justice Hernandez berated Atty. Pangalangan, the father of former UP Law Dean Raul Pangalangan, and uttered words such as Just because your son is always nominated by the JBC to Malacaang, you are acting like that! Do not forget that the brain of the child follows that of their (sic) mother. Should the respondent justices be held liable for conduct unbecoming? A: YES. Publicizing professional qualifications or boasting of having studied in and graduated from certain law schools, no matter how prestigious, might have even revealed, on the part of Justice Ong and Justice Hernandez, shows their bias for or against some lawyers. Their conduct was impermissible, consequently, for Section 3, Canon 4 of the New Code of Judicial Conduct for the Philippine Judiciary, demands that judges avoid situations that may reasonably give rise to the suspicion or appearance of favoritism or partiality in their personal relations with individual members of the legal profession who practice regularly in their courts. Judges should be dignified in demeanor, and refined in speech. In performing their judicial duties, they should not manifest bias or prejudice by word or conduct towards any person or group on irrelevant grounds. It is very essential that they should live up to the high standards their noble position on the Bench demands. Their language must be guarded and measured, lest the best of intentions be misconstrued. In this regard, Section 3, Canon 5 of the New Code of Judicial Conduct for the Philippine Judiciary, mandates judges to carry out judicial duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff, and judicial colleagues, without differentiation on any irrelevant ground, immaterial to the proper performance of such duties. (Jamsani-Rodriguez v. Ong, A.M. No. 0819-SB-J, August 24, 2010) Sec. 4, Canon 4, NCJC: Judges shall not participate in the determination of a case in which any member of their family represents a litigant or is associated in any manner with the case.
Note: This rule rests on the principle that no judge should preside in a case in which the judge is not wholly free, disinterested, impartial and independent.
Sec. 3, Canon 4, NCJC: Judges shall, in their personal relations with individual members of the legal profession who practice regularly in their court, avoid situations which might reasonably give rise to the suspicion or appearance of favoritism or partiality. Q: What is the reason for this rule? A: This section is directed at bolstering the principle of cold neutrality of an impartial judge as it requires judges to scrupulously guard against any act that may be construed as an expression of bias in favor of a litigant.
Note: Constant company with a lawyer tends to breed intimacy and camaraderie to the point that favors in the future may be asked from the judge which he may find it hard to resist. If a judge is seen eating and drinking in public places with a lawyer who has cases pending in his or her sala, public suspicion may be aroused, thus tending to erode the trust of litigants in the impartiality of the judge. (Padilla v. Zantua, G.R. No. 110990, Oct. 1994) Note: A judge shall avoid fraternizing with lawyers and litigants.
Q: Complainant Prosecutor filed an administrative complaint against respondent Sandiganbayan Justices for grave misconduct, conduct unbecoming a Justice, and conduct grossly prejudicial to the interest of the service. Allegedly, during a hearing, Justice Ong uttered words like We are playing Gods here, we will do what we want to do, your contempt is already out, we fined you eighteen thousand pesos, even if you will appeal, by that time I will be there, Justice of the Supreme Court. Also, he often asked lawyers from which law schools they had graduated, and frequently inquired whether the law school in which Justice Hernandez had studied and from which he had graduated was better than his (Justice Ongs) own alma mater. The complainant opined that the query was manifestly intended to emphasize that the San Beda College of Law, the alma mater of Justice Ong, and the UP College of Law, that of Justice Hernandez, were the best law schools. On another occasion in that hearing in Cebu City, Justice Hernandez discourteously shouted at Prosecutor HazelinaTujan-Militante, who was then observing trial from the gallery and said You are better than Director Somido? Are you better than Director Chua? Are you here to supervise Somido? Your office is wasting funds for one prosecutor who is doing nothing.
Sec. 5, Canon 4, NCJC: Judges shall not allow the use of their residence by a member of the legal profession to receive clients of the latter or of other members of the legal profession.
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Note: It was inappropriate for a judge to have entertained a litigant in his house particularly when the case is still pending before his sala. (J. King and Sons. V Hontanosas, Adm. Matter No. RTJ-03-1802, September 21, 2004)
Anonymous complaint Against Judge Acua, A.M. No. RTJ-04-1891, July 28, 2005)
Note: Judges in the exercise of their civil liberties, should be circumspect and ever mindful of their continuing commitment to uphold the judiciary and its values places upon them certain implied restraints to their freedom. A judge was admonished for the appearance of engaging in partisan politics when he participated in a political rally sponsored by one party, even though he only explained the mechanics of block voting to the audience. (Macias v. Arula, A.M. No. 1895-CFI, July 20, 1982)
Q: What is the reason for this rule? A: The reason is that judges are required to always exhibit cold neutrality of an impartial judge. Sec. 6, Canon 4, NCJC: Judges, like any other citizen, are entitled to freedom of expression, belief, association and assembly, but in exercising such rights, they shall always conduct themselves in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.
Note: While judges are not expected to live a hermit-like existence or cease functioning as citizens of the Republic, they should remember that they do not disrobe themselves of their judicial office upon leaving their salas. In the exercise of their civil liberties, they should be circumspect and ever mindful that their continuing commitment to upholding the judiciary and its values places upon them certain implied restraints to their freedom.
Sec. 7, Canon 4, NCJC: Judges shall inform themselves about their personal fiduciary and financial interests and shall make reasonable efforts to be informed about the financial interests of members of their family.
Note: This section should be read in conjunction with Sec. 7 of the R.A. 6713 (Code of Conduct and Ethical standards for Public officials and Employee), which prohibits certain personal fiduciary and financial conflicts. A judge shall refrain from financial and business dealings that tend to reflect adversely on the court's impartiality, interfere with the proper performance of judicial activities, or increase involvement with lawyers or persons likely to come before the court.
Q: In an anonymous letter sent to the OCA, Judge Acua was charged with improper conduct for allegedly making humiliating statements such as putris, and putang-ina. In his comment, Judge Acua explained that those words are only his favorite expressions and they are not directed to any particular person. He also explained that his behavior is justified by the fact that he is still mourning the sudden demise of his eldest son. Is the Judge guilty of improper conduct? A: Yes. Judges are demanded to be always temperate, patient and courteous both in the conduct and language. Indeed, judges should so behave at all times because having accepted the esteemed position of a judge he ought to have known that more is expected of him than ordinary citizen. Here, the judges use of humiliating and insensitive expressions like putris and putang- ina is improper as such intemperate language detracts from how he should conduct himself. Moreover, it does not matter whether such expressions were directed to a particular person or not, as they give the impression of a persons ill manners. (Re:
Sec. 8, Canon 4, NCJC: Judges shall not use or lend the prestige of the judicial office to advance their private interests, or those of a member of their family or of anyone else, nor shall they convey or permit others to convey the impression that anyone is in a special position improperly to influence them in the performance of judicial duties. Q: What are the acts prohibited by the rule? A: 1. Judges act of using judicial office to advance private interests
Note: An RTC judge took advantage of his position, by filing in the Makati court a collection case in which he and his wife were the complainants. The Court ruled that although a stipulation in the contract gave the judge, as creditor, choice of venue, the judge had nonetheless fallen short of what is expected of him as a judicial officer. This act of the judge would lead the public, and in particular the judges adversary, to suspect
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that the judge would use the choice of venue as a means to exert influence in favor of himself. (Javier v. De Guzman, A.M. No. RTJ89-380, Dec. 19, 1990)
2.
Judges act of giving impression that he can be influenced to use the judicial office to advance the private interests of others.
Note: Another common violation of this rule is using judicial power to exact personal vengeance.
Q: Judge Lilagam was charged with improper conduct for allowing his wife to have access to court records. In his answer, the judge admitted that he requested his wife who was previously a legal researcher, to go over the records and pinpoint problem areas and to suggest measures to rectify the same and to improve the system of case monitoring. Is the judge guilty of improper conduct? A: Yes. Records of cases are necessarily confidential, and to preserve their integrity and confidentiality, access thereto ought to be limited only to the judge, the parties or their counsel and the appropriate court personnel in charged of the custody of said records. Here, since Mrs. Lilagam is not a court employee specifically in charge of the custody of said records, the judges act of allowing her to have access thereto is improper as such would convey the impression that she isthe one who can influence the judges official function. (Gordon v. Lilagam, A.M. No. RTJ-001564, July 26, 2001) Q: At the pre-trial of a civil case for collection, one of the parties mentioned that he expected to settle his obligation as he was investing in some stocks of a realty corporation that were sure to soar in the market because of some confidential information he obtained from his brother-in-law, a top rank officer of the corporation. Upon hearing the information the judge lost no time in buying the stocks in the realty corporation and as predicted made a lot of money. Is the judge guilty of unethical conduct? A: Yes. Sec. 9, Canon 4 of NJCJprovides that no information acquired in a judicial capacity shall be used or disclosed by a judge in any financial dealing or for any other purpose not related to judicial activities. The judge in this case has violated the foregoing rule, and acted unethically. (1995 Bar Question) Q: May a violation of this rule constitute criminal offense? A: Yes. The act may constitute the following criminal offenses: Under Sec. ([k) of R.A. 3019, and under Art. 229 and 230 of the RPC, to wit: 1. Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. (3[k] of R.A. 3019)
Q: Judge Escano was charged with allegedly using court facilities (bulletin board) in advertising for attractive waitresses and cooks for possible employment in their restaurant business. In addition, the judge also allowed the use of the court address to receive applications as well as his office in screening the applicants. In his comment, the judge explained that he merely wanted to give assistance to his wife, and the posting of advertisements as well as the conduct of screening in his office is the most convenient way for him considering the difficulty of locating the residence. Did the judge commit any unethical act? A: Yes. Judges shall not use or lend the prestige of the judicial office to advance their private interests for those of a member of a family. This is so to avoid possible interference which may be created by such business involvements in the exercise of their duties which may tend to corrode the respect and dignity of the court as bastion of justice. Here, the act of the judge in using the court facilities to promote family business is improper. (Dionisio v. Escano, A.M. No. RTJ-98-1400, Feb. 1, 1999) Q: What is ticket fixing? A: Ticket fixing is misconduct in which judges impermissibly take advantage of their public position to avoid punishment for traffic violations. Sec. 9, Canon 4, NCJC: Confidential information acquired by judges in their judicial capacity shall not be used or disclosed for any other purpose not related to their judicial duties. Q: What is the reason for this rule? A: The prohibition will discourage, if not stop judges from making business speculations in some business ventures, the secrets of which they learned by reason of their position as judges.
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2. Revelation of secrets by an officer Any public officer who shall reveal any secret known to him by reason of his official capacity, or shall wrongfully deliver papers or copies of papers of which he may have charge and which should not be published, shall suffer imprisonment. (Art. 229, RPC) Public officer revealing secrets of private individual Any public officer to whom the secrets of any private individual shall become known by reason of his office who shall reveal such secrets, shall suffer the penalties of arresto mayor and a fine. (Art. 230, RPC) functions in quasi-judicial or administrative agencies. This does not mean, however, that judges should adopt an attitude of monastic insensibility or unbecoming indifference to the Provincial/City Committee on Justice. As incumbent judges, they form part of the structure of government. Even as non-members, Judges should render assistance to said Committees to help promote the laudable purposes for which they exist, but only when such assistance may be reasonably incidental to the fulfillment of their judicial duties. (In Re: Designation of Judge Rodolfo U. Manzano, A.M. No. 88-7-1861-RTC, Oct. 5, 1988)
Note: Under Sec. 10(c), Section 10, Canon 4, a judge may engage in private business without the written permission of the Supreme Court. (Borre v. Moya, A.M. No. 1765-CFI, Oct. 17, 1980)
3.
Sec. 10, Canon 4, NCJC: Subject to the proper performance of judicial duties, judges may: 1. Write, lecture, teach and participate in activities concerning the law, the legal system, the administration of justice or related matter; 2. Appear at a public hearing before an official body concerned with matters relating to the law, the legal system, the administration of justice or related matters; 3. Engage in other activities if such activities do not detract from the dignity of the judicial office or otherwise interfere with the performance of judicial duties.
Sec. 11, Canon 4, NCJC: Judges shall not practice law whilst the holder of judicial office. Q: What is the basis of the prohibition? A: This prohibition is based on the inherent incompatibility of the rights, duties and functions of the office of an attorney with the powers, duties and functions of a judge.
Note: Sec. 35 of Rule 138 of the Rules of Court prohibits judges from engaging in the practice of law or giving professional advice to clients. Philippine courts not only prohibit judges from overtly representing clients as counsel of record, but also from acting more subtly in a way more befitting an advocate than a judge. Note: While municipal judges can administer oaths or execute certificates on matters related to their official functions, they cannot notarize private documents. Judges assigned to municipalities and circuits may act as notaries provided all notarial fees charged be to the governments account and a certification attesting to the lack of lawyers on notary in the municipality or circuit be made. (SC Circular 1-90) Note: The rule disqualifying a municipal judge from engaging in the practice of law seeks to avoid the evil of possible use of the power and influence of his office to affect the outcome of the litigation where he is retained as counsel. Compelling reasons of public policy lie behind this prohibition, and judges are expected to conduct themselves in such a manner as to preclude any suspicion that they are representing the interests of party litigant (Dia-
Note: This section allows the judge to participate in legal academia and public discourse on legal matters with the proviso that there shall be no interference in the performance of the judges primary functions with respect to his or her jurisdiction. In dealing with the media however, the Philippine Judicial Academy suggests that a judge or court should avoid acrimonious debate with reporters and the public, for a knee jerk reaction from the court or judge may only provoke negative follow-up reports and articles. This sections tolerance of judicially-related activities is limited by Sec. 12, Article VIII of the Constitution, which prohibits judges from being designated to any agency performing quasi-judicial or administrative functions.
Q: May a judge be a member of the Provincial Committee on Justice? A: No. Such membership would violate the constitutional provision on the discharge by members of the judiciary of administrative
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Anonuevo v. Bercacio, A.M. No. 177-MTJ, November 27, 1975)
witness and not as a legal counsel. Besides, his act was an isolated act. (2002 Bar Question) Sec. 12, Canon 4, NCJC: Judges may form or join associations of judges or participate in other organizations representing the interests of judges.
Note: This rule recognizes the difference between membership in associations of judges and membership in associations of other legal professionals. While attendance at lavish events hosted by lawyers might create an appearance of impropriety, participation in judges-only organizations does not.
Q: Respondent Judge Lelina was administratively charged for violation of Section 35, Rule 138 of the Rules of Court and Rule 5.07, Canon 5 of the Code of Judicial Conduct. He was then preventively suspended by the Court on account of an earlier administrative complaint filed charging him with harassment in connection with the criminal complaint for Rape and the complaint for Abduction with Rape and Slight Illegal Detention. He then filed a Motion for Early Resolution of the criminal case praying for a resolution in his favor. Subsequently he appealed to the Court to grant him the permission to practice law during the remainder of his preventive suspension or, if such cannot be granted, to consider him resigned from the judiciary. It turned out that before he filed the above-said Manifestation, Appeal and Omnibus Motion, Judge Lelina engaged in the private practice of law. Did the judge commit any unethical act? A: Yes. Since Section 35, Rule 138 of the Rules of Court and Section 11, Canon 4 of the New Code of Judicial Conduct for the Philippine Judiciary does not make any distinction in prohibiting judges from engaging in the private practice of law while holding judicial office, no distinction should be made in its application. In the present case, Judge Lelina having been merely suspended and not dismissed from the service, he was still bound under the prohibition. (Binalay v. Lelina Jr, A.M. No. RTJ-08-2132, July 31, 2009) Q: In an extrajudicial settlement of the estate of the late Juan Mayaman, the heirs requested Judge Maawain, a family friend, to go over the document prepared by a new lawyer before they signed it. Judge Maawain agreed and even acted as an instrumental witness. Did Judge Maawain engage in the unauthorized practice of law? Why? A: No. In the case of de Castro v. Capulong, 118 SCRA 5 (1982), the Supreme Court held that a judge who merely acted as a witness to a document and who explained to the party waiving his rights of redemption over mortgaged properties the consequences thereof, does not engage himself in the practice of law. This appears to be more applicable to the case of Judge Maawain. He did not give professional advice in anticipation of litigation. He was just asked to review a deed of extrajudicial settlement of estate. He signed merely as an instrumental
Q: What is the general rule with regard to prohibition against accepting gifts, bequests, or loans? A: The general rule is that found in Sections 13 and 14. Sec. 13, Canon 4, NCJC: Judges and members of their families shall neither ask for nor accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done by him or her in connection with the performance of judicial duties. Sec. 14, Canon 4, NCJC: Judges shall not knowingly permit court staff or others subject to their influence, direction or authority, to ask for, or accept, any gift, bequest, loan or favor in relation to anything done, to be done or omitted to be done in connection with their duties or functions.
Note: Section 13 should be read in conjunction with Section 7(d) of R.A. 6713 (Code of Conduct and Ethical Standards for Public officials and Employee) which provides that, public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of money value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office. Respondent Judge Ganay clearly fell short of the exacting standards set by the New Code of Judicial Conduct for the Philippine Judiciary. His acts of receiving lawbooks worth fifty thousand pesos, cellular phones and monthly cellular phone prepaid cards from the property guardians of the late Rev.
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Fr. Aspiras, who was then the ward of the court, constitute impropriety which the Court cannot allow. Respondent Judge Ganays act of issuing Orders directing the manager of the PNB, La Union Branch to draw checks amounting to thousands of pesos from the account of the late Rev. Fr. Aspiras creates the impression of impropriety and subjects the court to suspicion of irregularities in the conduct of the proceedings. (Heirs of the late Rev. Fr. Jose Aspiras v. Judge Ganay, A.M. No. RTJ-07-2055, Dec. 17, 2009) Note: Section 14 should be read in relation to Section 7(d) of RA No. 6713 which prohibits public officials from soliciting or accepting gifts from any person in the course of their official duties.
Q: What gifts and grants from foreign countries are allowed? A: 1. The acceptance and retention by a public official or employee of a gift of nominal value tendered and received as a souvenir or mark of courtesy; The acceptance by a public official or employee of a gift in the nature of a scholarship or fellowship grant or medical treatment; or The acceptance by a public official or employee of travel grants or expenses for travel taking place entirely outside the Philippines (such as allowances, transportation, food and lodging) of more than nominal value if such acceptance is appropriate or consistent with the interest of the Philippines, and permitted by the head office, branch or agency to which the judge belongs. (Sec. 7[d], R.A. 6713)
2.
3.
Q: What is the reason for this rule? A: This section is intended to assure that what the judge cannot do directly (soliciting gifts), may not be done indirectly through the use of employees or staff members. Q: X was charged with grave threat before the sala of Judge Elias Lelina. During the pendency of the case, X offered a business partnership to the daughter of Judge Lelina who then accepted the same. Should the judge be disciplined? A: Yes. Judges should not allow members of their family to accept gifts nor favor in relation to anything done, to be done, or omitted to be done by the judge in connection with the performance of his official duties. Here, the judges act of allowing his daughter to accept the business offer of X despite knowledge of the possible intention of the latter who has pending case in his sala is improper. (Dulay v. Lelina Jr., A.M. No. RTJ-991516, July 14, 2005) Q: What is the exception to Sections 13 and 14 of Canon 4 of the NCJC? A: Canon 4, Section 15 of NCJC. Sec. 15, Canon 4, NCJC: Subject to law and to any legal requirements of public disclosure, judges may receive a token gift, award or benefit as appropriate to the occasion on which it is made, provided that such gift, award or benefit might not reasonably be perceived as intended to influence the judge in the performance of official duties or otherwise give rise to an appearance of partiality.
Note: Judges are allowed to accept token gifts, awards, or benefits when given as a consequence of a special occasion.
Q: When is a judge considered guilty of indirect bribery? Of direct bribery? A: Acceptance of gifts given by reason of the office of the judge is indirect bribery (Art. 211, Revised Penal Code) and when he agrees to perform an act constituting a crime in connection with the performance of his official duties in consideration of any offer, promise, gift or present receive by such officer, he is guilty of direct bribery (Art. 210, Revised Penal Code).
Note: GR: Under the Anti-Graft and Corrupt Practices Act (RA 3019), the judge is liable criminally for directly or indirectly receiving gifts, presents or other pecuniary or material benefit for himself or for another under conditions provided in Section 2, pars. b and c of the law. XPN: Unsolicited gifts or presents of small value offered or given as a mere ordinary token of gratitude or friendship according to local custom or usage (Section 14, RA 3019) Note: Donations given to a judge or to his wife, descendants or ascendants by reason of his office are void (Art. 739, Civil Code). Ownership does not pass to the donee. Money or property donated is recoverably by the donor, his heirs or creditors. Note: Under Section 16 Article XI of the 1987 Constitution No loan, guarantee or other form of financial accommodation for any business purpose may be granted directly or indirectly by any government-owned or controlled bank or financial
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institution to xxx members of the Supreme Court xxx during their tenure. It is a serious misconduct for a judge to receive money from a litigant in the form of loans which he never intended to pay back. Even if the judge intends to pay, it is an act of impropriety to take a loan from a party litigant. The judge could not be wholly free from bias in deciding a case where his lender is a party. A judge should always strive to be free from suspicion and all forms of improprieties. (Ompoc v. Judge Torres, A.M. No. MTJ-86-11 September 27, 1989 Note: To ensure equality of treatment to all before the courts is essential to the due performance of the judicial office. As the guardians of justice, courts must adhere to the principle of equality. People expect the courts to be unaffected by differences in social status, degree of education and even physical abilities. Judges should not yield to first impression, reach hasty conclusions or prejudge matters. They have a duty to ensure that the minority status of a party plays no part in their decisions.
Sec. 2, Canon 5, NCJC: Judges shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds.
Note: Magistrates of law must comport themselves at all times in such a manner that their conduct, can withstand the highest level of public scrutiny. Judges should avoid private remarks, hasty conclusions, or distasteful jokes that may give even erroneous impressions of prejudice and lead the public to believe that cases before them are being prejudged.
CANON 5,NCJC-EQUALITY ENSURING EQUALITY OF TREATMENT TO ALL BEFORE THE COURTS IS ESSENTIAL TO THE DUE PERFORMANCE OF THE JUDICIAL OFFICE.
Note: A judge must be able to render substantial justice and maintain public confidence in the judicial system, by being aware of the diversity in society. With that awareness, a judge should not yield to first impression, reach hasty conclusions or prejudge matters. (Castillo v. Judge Juan, 62 SCRA 124)
Sec. 3, Canon 5, NCJC: Judges shall carry out judicial duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff and judicial colleagues, without differentiation on any irrelevant ground, immaterial to the proper performance of such duties.
Note: As arbiters of the law, judges should be conscientious, studious, courteous, patient and punctual in the discharge of their judicial duties, recognizing that time of litigants, witnesses and counsel is of value. Judges should act with decorum toward jurors, parties, court staff, spectators, and alike.
Sec. 1,Canon 5,NCJC: Judges shall be aware of and understand diversity in society and differences arising from various sources, including, but not limited to, race, color, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status, and other like causes. Q: What is the reason for this rule? A: To render substantial justice and maintain public confidence in the judicial system, judges are expected to be aware of the diversity in society that results from an increased worldwide exchange of people and ideas.
Note: Judges should be mindful of the various international instruments and treaties ratified by the Philippines, which affirm the equality of all human beings and establish a norm of non-discrimination without distinction as to race, sex, language, or religion.
Q: Judge Tormis made a comment in a certain case to the effect that the same should be dismissed as the act complained of was already decriminalized by a special law. Thereafter, Judge Navarro, who previously handled the case before he was appointed as a judge, barged into the office of Judge Tormis telling to the staff that their judge does not know her law. Judge Tormis then retaliated by saying that to her, the office of Judge Navarro does not exist. Are the judges guilty of conduct unbecoming of a judge? A: Yes. Judges, being dispensers of justice should not act in a way that would cast suspicion in order to preserve faith in the administration of justice. They should so behave to avoid poor public impression on the judiciary. Here, the judges act of fighting each other by uttering derogatory remarks against each other is a conduct unbecoming of a judge for which they should be
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disciplined as their fight has impaired the image of the judiciary. (Navarro v. Tormis, A.M. No. MTJ00-1337, Apr. 27, 2004) 2. Q: Atty. Quinto was the defense counsel in a criminal case. In his verified complaint, he alleged that during the hearing, he manifested that he was waiving the presentation of evidence for the accused. Judge Vios then allegedly got angry, shouted and scolded him, stating that the defense had no right to waive the presentation of evidence. He did not even listen to Atty. Quintos explanation and, thereafter, compelled the latter to withdraw his appearance as counsel of the accused, under pain of contempt. In the presence of the complainant, Judge Vios appointed a counsel de officio. May Judge Vios be held administratively liable for compelling the lawyer to withdraw as counsel for the accused under pain of contempt? A: Yes. A judge should avoid unconsciously falling into the attitude of mind that the litigants are made for the courts, instead of the courts for the litigants. Here, the judge should be held liable for misconduct when he threatened to punish complainant for contempt of court if he would refuse to withdraw his appearance, as counsel for the accused, when the latter insisted on waiving the presentation of the evidence for the defense. (Atty. Quinto v. Judge Vios, A.M. No. MTJ-041551, May 21, 2004)
Note: Unequal and disparate treatment in the courthouse, whether intentional or perceived, is unacceptable and can negatively impact the professional lives of attorneys and employees, the assessment of claims of litigants, and the respect and credibility of the justice system.
whether such information came from authorized or unauthorized sources; and To organize their courts to ensure the prompt and convenient dispatch of business and should not tolerate misconduct by clerks, sheriffs and other assistants who are sometimes prone to expect favors or special treatment due to their professional relationship with the judge.
Note: All personnel involved in the dispensation of justice should conduct themselves with a high degree of responsibility. (Mataga v. Rosete, A.M. No. MTJ-03-1488, Oct. 13, 2004)
Sec. 5, Canon 5,NCJC: Judges shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on irrelevant grounds, except such as are legally relevant to an issue in proceedings and may be the subject of legitimate advocacy.
Note: Judges should conduct proceedings in court with dignity and in a manner that reflects the importance and seriousness of proceedings. They should maintain order and proper decorum in the court. (Rule 3.03, Canon 3, 1989 Code of Judicial Conduct) Judges have the duty to prevent lawyers from abusing witnesses with unfair treatment. As courts are expected to ensure equality, any lawyer who makes an insensitive or demeaning comment in court should be admonished.
Sec. 4, Canon 5, NCJC: Judges shall not knowingly permit court staff or others subject to his or her influence, direction or control to differentiate between persons concerned, in a matter before the judge, on any irrelevant ground. Q: What are the duties of judges under this section? A: 1. To ensure that court personnel under their supervision do not discriminate by dispensing special favors or disclosing confidential information to any unauthorized person, regardless of
Q: During the hearing of a case for statutory rape filed against X, the lawyer is asking the 6year-old victim to relate exactly and step by step the sexual intercourse between her and the accused. The lawyer is also asking questions whether at the time of the alleged rape, the accuseds penis was hard, and whether at the time they were caught, the accused was still pushing and pulling his penis inside her vagina. Should the judge allow such questions? A: No. The judge shall require lawyers to refrain from making abusive and uncalled for queries. Here, the fact that the victim of rape is a child of tender years, there is more reason to require the lawyer to be tactful. No woman especially child of tender years would exactly remember step by step the sexual intercourse in the hands of the maniacal beast. Hence, all the questions asked
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are excessive. (People v. Boras, G.R. No. 127495, Dec. 22, 2000)
Note: This line of questioning may be relevant if the aggrieved party is an adult but not to a child. The Rule on the examination of a child witness (A.M. No. 004-07-SC) protects children so that developmentally appropriate questions can only be asked.
CANON 6, NCJC-COMPETENCE AND DILIGENCE COMPETENCE AND DILIGENCE ARE PREREQUISITES TO THE DUE PERFORMANCE OF JUDICIAL OFFICE. Q: What are the pre-requisites to the due performance of judicial office? A: Competence and diligence. (Canon 6, NCJC) A judge upon assumption to office, becomes the visible representation of law and of justice, hence, the Constitution (Section 7 (3), Article VIII), prescribes that he must be a person of proven competence as a requisite of his membership in the judiciary. A judge should be the epitome of competence, integrity and independence to be able to render justice and uphold public confidence in the legal system. He must be conversant with basic legal principles and well-settled doctrines. He should strive for excellence and seek the truth with passion.(Rino v. Judge Cawaling, A.M. No. MTJ02-1391, June 7, 2004)
Note: As members of the judiciary, judges ought to know the fundamental legal principles; otherwise, they are susceptible to administrative sanction for gross ignorance of the law. (Heirs of Piedad v. Estrella, A.M. No. RTJ-09-2170, Dec. 16, 2009) Note: To constitute gross ignorance of the law must not only be contrary to existing law and jurisprudence, but also motivated, by bad faith, fraud, dishonesty and corruption.(Duduaco v. Laquindanum, A.M. No. MTJ-05-1601, August 11, 2005)
by Judge Ramos in a criminal case for arson through reckless imprudence and imposed upon him the penalty of imprisonment, with all the accessory penalties imposed by law in addition to the payment of costs and damages. On appeal, the RTC deleted the penalty of imprisonment. However, Judge Ramos subsequently issued a warrant of arrest and Commitment on Final Sentence which led to complainants incarceration at the Solano District Jail from August 8 to 28, 2006. In his comment, the judge clarified that his issuance of the warrant of arrest against Bacaya was a mistake done in good faith and that the same was just a simple negligence. Should the judge be disciplined? A: Yes. The judge was inexcusably negligent when he issued a Warrant of Arrest and Commitment to Final Sentence despite the deletion by the appellate court of that portion of the judgment imposing the penalty of imprisonment. In the performance of his duties, Judge Ramos failed to observe that diligence, prudence and circumspection which the law requires in the rendition of any public service. If only Judge Ramos had exercised the requisite thoroughness and caution, he would have noted not only the modification of the monetary awards by the appellate court, but also the deletion of the penalty of imprisonment upon which the Warrant of Arrest and Commitment to Final Sentence that he signed was based. (Bayaca v. Judge Ramos, A.M. No. MTJ-07-1676, Jan. 29, 2009) Sec.1, Canon 6, NCJC: The judicial duties of a judge take precedence over all activities. Q: What are the duties of a judge under this section? A: 1. A judge must perform his judicial duties with regard to a case where he is not disqualified to do so and, may not divest himself of such case if he is not so disqualified; and A judge shall not inhibit himself simply to avoid sitting on difficult or controversial cases.
2.
Q: Judge Ramos was charged with gross misconduct, dishonesty, gross ignorance of the law, arbitrary detention, incompetence, grave abuse of discretion, and conduct prejudicial to the best interest of the service allegedly for erroneously issuing a warrant of arrest against Bayaca. It was alleged that Bayaca was convicted
Q: An administrative case against Judge Calderon was filed for incurring leaves of absence for almost a straight period of 3 years. In his comment, he claimed that he was suffering from a lingering illness of malignant
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hypertension which claim was supported by medical certificates prepared by his personal doctor. However, when the court physician conducted some tests, the same contradicted the diagnosis given by the judges personal doctor. Is Judge Calderon guilty of gross misconduct? A: Yes. A judge shall be cautious of his court duties. Here, the judge should have been aware that, in frequently leaving his station, he has caused great disservice to many litigants and has denied them speedy justice. (Re: Leaves of Absence Without Approval of Judge Eric Calderon, Municipal Trial Court Judge of Calumpit, Bulacan, A.M. No. 98-8-105-MTC, Jan. 26, 1999) Q: Judge Limsiaco was charged with gross ignorance of the law and procedure and violations of the Code of Judicial Conduct when it was established by the records and by his own admission that he decided an ejectment case before his sala more than two (2) years after it was declared submitted for resolution. Due to his delay of rendering the decision, he was held guilty of the said charge. He moved for an extension of time to file a motion for reconsideration. Despite the extension of time given however, Judge Limsiaco failed to file his motion for reconsideration and the required explanation thrice. In another complaint against him for Delay in the Disposition of a Case, the OCA issued an order for him to file a comment for the administrative complaint. Is the respondent judge administratively liable for unethical conduct and gross inefficiency under the provisions of the New Code of Judicial Conduct, specifically, Sections 7 and 8 of Canon 1, and Section 5 of Canon 6? A: Yes. A judge is the visible representation of the law, and more importantly of justice; he or she must, therefore, be the first to follow the law and weave an example for the others to follow. For a judge to exhibit indifference to a resolution requiring him to comment on the accusations in the complaint thoroughly and substantially is gross misconduct, and may even be considered as outright disrespect for the Court. The office of the judge requires him to obey all the lawful orders of his superiors. After all, a resolution of the Supreme Court is not a mere request and should be complied with promptly and completely. Such failure to comply accordingly betrays not only a recalcitrant streak in character, but has likewise been considered as an utter lack of interest to remain with, if not contempt of the judicial system. A resolution of the Supreme Court requiring comment on an administrative complaint against officials and employees of the judiciary should not be construed as a mere request from the Court. Nor should it be complied with partially, inadequately or selectively. Respondents in administrative complaints should comment on all accusations or allegations against them in the administrative complaints because it is their duty to preserve the integrity of the judiciary. Moreover, the Court should not and will not tolerate future indifference of respondents to administrative complaints and to resolutions requiring comment on such administrative complaints. Under the circumstances, the conduct exhibited by Judge Limsiaco constitutes no less than clear acts of defiance against the Courts authority. His conduct also reveals his deliberate disrespect and indifference to the authority of the Court, shown by his failure to heed our warnings and directives. Judge Limsiacos actions further disclose his inability to accept our instructions. Moreover, his conduct failed to provide a good example for other court personnel, and the public as well, in placing significance to the Courts directives and the importance of complying with them. (Inoturan, v. Limsiaco, Jr., A.M. No. MTJ-01-1362, February. 22, 2011) Sec. 2, Canon 6, NCJC: Judges shall devote their professional activity to judicial duties, which include not only the performance of judicial functions and responsibilities in court and the making of decisions, but also other tasks relevant to the judicial office or the courts operations.
Note: Violations of this section often involve a failure to keep records or handle funds in compliance with court rules.
Q: Judge Daguman was charged with neglect of duty in failing to retain a copy and to register with the Local Civil Registrar a marriage contract. In his comment, the judge explained that his failure to do so was occasioned by circumstances beyond his control. He averred that after the wedding ceremony, the copies of the marriage contract were left on top of his desk in his private office where the ceremony was held but after few days, when he gathered all the documents relating to the marriage, the copies were already missing. He also explained that he was not able to inform the parties about the fact
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of loss as they were already out of the country. Should the judge be disciplined? A: Yes. A judge is charged with extra care in ensuring that records of the cases and official documents in his custody are intact. Moreover, judges must adopt a system of record management, and organize their dockets in order to bolster the prompt and efficient dispatch of business. Here, the circumstances show that the loss of the documents was occasioned by the carelessness on the part of the judge. The judge should not have left such important documents in his table to be gathered only after few days, instead, he should have devised a filing system in his court so as to avoid such incident. (Beso v. Daguman, A.M. No. MTJ-99-1211, Jan. 28, 2000) Q: X charged Judge Garillo with dishonesty and corrupt practices for allegedly requiring the former to deposit with the latter a sum of money in connection with a pending case in the latters sala but failed to give the deposited sums of money to the adverse party. It was also alleged that when X demanded the return of money, the judge failed to return the same despite his promise. Is the judge guilty of serious misconduct? A: Yes. A judge should always be a symbol of rectitude and propriety, and should always comport himself in a manner that will raise no doubt whatsoever about his honesty. Here, the judges act of misappropriating the money entrusted to him by litigants in connection with a case pending in his court constitutes gross misconduct. Moreover, the judge violated Circular No. 50-95 which provides that, fiduciary collections should be deposited with the Land Bank of the Philippines. Because of his actuations, the image of the judiciary was impaired. (De Pacete v. Judge Garillo, A.M. No. MTJ-03-1473, Aug. 20, 2003) Q: Should the judge return court records upon retirement? A: Yes. Since the proper and efficient management of the court is the responsibility of the judge, he is the one directly responsible for the proper discharge of official functions. Thus, a judge is obliged to return to the court the records of the cases filed in his sala upon his retirement. (Office of the Court Administrator v. Retired Judge Carteciano,A.M. No. MTJ-07-1664, Feb. 18, 2008) Sec. 3, Canon 6, NCJC: Judges shall take reasonable steps to maintain and enhance their knowledge, skills and personal qualities necessary for the proper performance of judicial duties, taking advantage for this purpose the training and other facilities which should be made available, under judicial control, to judges.
Note: Service in the judiciary means a continuous study and research on the law from beginning to end. Judges are regarded as persons learned in the law. Ignorance of the law excuses no one has special application to judges. Though good faith and absence of malice or corruption are sufficient defenses, such does not apply where the issues are so simple and the applicable legal principles evident and basic as to be beyond possible margin of error. (Corpus v. Ochotoresa, A.M. No. RTJ 04-1861, July 30 2004) Note: One who accepts the exalted position of a judge owes the public and the Court the duty to maintain professional competence at all times. When a judge displays an utter lack of familiarity with the rules, he erodes the confidence of the public in the courts. A judge owes the public and the Court the duty to be proficient in the law and is expected to keep abreast of laws and prevailing jurisprudence. Ignorance of the law by a judge can easily be the mainspring of injustice. (Villanueva v. Judge Buaya, A.M. No. RTJ-08-2131, November 22, 2010).
Q: Judge Delos Santos averred that Judge Mangino of the MTC Tarlac approved the bail bond for provisional liberty of the accused Santos who was arrested and whose criminal cases were pending in Angeles City. It was also made to appear from the contents of the said bond that the accused appeared before notary public Ancanan in Makati City. According to the accused, she never went to Tarlac and appeared before said Judge Mangino. She also alleged that she never went to Makati City and appeared before Notary Public Ancanan. Is Judge Mangino guilty of grave misconduct? A: Yes. Judges should be diligently acquainted with the law and jurisprudence. As an advocate of justice and a visible representation of the law, a judge is expected to keep abreast with and be proficient in the application and interpretation of the law. Here, by mere glancing at the bail bond application, the judge ought to know that he had absolutely no authority or jurisdiction to approve the bail bond of the accused as the case was pending with another court. By approving the bail
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bond application, the judge failed to exert such conscientiousness, studiousness, and thoroughness expected and demanded of a judge. (Judge de los Santos v. Judge Mangino, A.M. No. MTJ-03-1496, July 10, 2003) Q: Judge Gacott Jr. dismissed an election case on the ground of non-payment of docket fees, although the case had been previously admitted and was deemed properly filed by the original Judge (who inhibited himself due to relationship to one of the parties). Judge Gacott issued the dismissal order relying on a case (Manchester v. CA) which states that - a case is deemed commenced only upon the payment of the proper docket fees. To his opinion, the required fees in this case were not yet paid by the protestant. Enojas charged him with gross ignorance of the law. Is Judge Gacott Jr. guilty of gross ignorance of the law? A: Yes. A judge is duty bound to adhere to, and apply the recent jurisprudence, and he cannot feign ignorance thereof, because he is required to be an embodiment of, among other things, judicial competence. Here, the ruling relied upon by the judge does not apply to election cases as in the latter case the filing fee is fixed and the claim for damages, to which the docket fess shall be made to apply, is merely ancillary to the main cause of action and is not even determinative of the courts jurisdiction. It must also be noted that in this case, the original judge already made an order that from the deposit given by the protestant for the expenses of reopening the questioned ballots, an amount shall be allocated for the payment of the required fees. Thus, the election protest was already properly filed. (Enojas v. Judge Gacott, Jr., A.M. No. RTJ-99-1513, Jan. 19, 2000) Sec. 4, Canon 6, NCJC: Judges shall keep themselves informed about relevant developments of international law, including international conventions and other instruments establishing human rights norms.
Note: Norms of international law has become the concern of judges because they form part of legal standards by which their competence and diligence required by the New Code of Judicial Conduct are to be measured. Note: A judge may be subject to an administrative fine for inefficiency, neglect, and unreasonable delay in elevating the records of a civil case to the Court of Appeals. A delay of three years in the transmission of court records to the appellate court, where a period of 30 days is required, is inexcusable. (Pataleon v. Guidez, A.M. No. RTJ-00-1525, Jan. 2000)
Q: Why should delay be avoided in the administration of justice? A: Delay results in undermining the people's faith in the judiciary and from whom the prompt hearing of their supplications is anticipated and expected, and reinforces in the mind of the litigants the impression that the wheels of justice grind ever so slowly. Certainly, undue delay cannot be countenanced at a time when the clogging of the court dockets is still the bane of the judiciary. Judges are expected to observe utmost diligence and dedication in the performance of their judicial functions and the discharge of their duties. (Imbang v. Judge del Rosario, A.M. No. MTJ-03-1515, Feb. 3, 2004) Q: Judge Diaz was charged with inefficiency allegedly for his failure to render a decision on time. It was alleged that in an unlawful detainer case filed by De Joya against spouses Hornillos which was already submitted for decision upon the approval of a motion for summary judgment filed by De Joya, Judge Diaz failed to render a decision despite the lapse of several months from the submission of the case for resolution. In his comment, the judge explained that his delay was the result of an oversight due to the volume of work that he and his staff had to handle. Should the judge be disciplined? A: Yes. Decision-making is a primordial and by far the most important duty of a member of the bench. The Code of Judicial Conduct mandates that a judge must dispose of the court's business promptly and to act on cases pending before him within the prescribed periods therefore. A judge's failure to observe time prescriptions for the rendition of judgments in derogation of an otherwise speedy administration of justice constitutes a ground for administrative sanction. A judge can not be excused from complying with the periods on the ground that he has heavy case loads, for in such cases, all he has to do is to request for additional time to decide cases. Here, the judges failure to decide the unlawful detainer case within 30 days from the submission for decision renders him liable for inefficiency for which he should be disciplined unless he was
Sec. 5, Canon 6, NCJC: Judges shall perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly and with reasonable promptness.
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granted, upon his request, additional time to decide the case. (De Joya v. Judge Diaz, A.M. No. MTJ-02-1450, Sept. 23, 2003) Q: Judge Pascua was charged with inefficiency in resolving an election protest pending in her sala. It was alleged that she issued an order archiving the case because of her erroneous perception that an appeal was filed by the parties to the SC where in fact the same was filed with the COMELEC. As a result, the hearing as well as the resolution of the case was delayed for 6 months. In her comment, the judge explained that in issuing such order, she relied on the copy of a petition by appeal on certiorari that was shown to her. Should the judge be disciplined? A: Yes. Judges should maintain professional competence and decide cases within the required periods. Here, had the judge carefully read the copy of the petition by appeal on certiorari that was presented to her, she would have been able to ascertain that the same was not filed with the SC. Moreover, had she been careful, she would not have issued such erroneous order that caused the undue delay in the resolution of the case. For her inefficiency, the judge should be disciplined. (Dela Cruz v. Pascua, A.M. No. RTJ-99-1461, June 26, 2001) Q: A judge was due for compulsory retirement. The Office of the Court Administrator found that he had many pending cases, some of which were undecided beyond the 90-day period. Should the judge be disciplined under the circumstance despite his impending compulsory retirement? A: Yes. All judges are enjoined to attend promptly to the business of the court and decide cases within the time fixed by law. A judge is mandated to render judgment not more than 90 days from the time the case is submitted for decision. Failure to render the decision within the said period of 90 days from submission of a case for decision constitutes serious misconduct and gross inefficiency. (Re: Report on the Judicial Audit Conducted in the RTC, Branch 68 of Camilang, Tarlac, A.M. No. 97-6-182-RTC, Mar. 19, 1999)
Note: The Constitution provides that all lower courts must decide all cases filed within three months. Further, the Code of Judicial Conduct states that a judge shall dispose of the courts business promptly and decide the cases within the required periods. Delay in the disposition of cases erodes the faith and confidence of the people in the judiciary, lowers its standards, and brings it to disrepute. Judges should not abuse the grant of an extension to decide a case, and strive to decide the case within the extended period granted by the Court. Under Sec. 9, Rule 140 of the Rules of Court, undue delay in rendering a decision or order is classified as a less serious charge punishable with suspension from office without salary and other benefits for not less than one (1) nor more than three (3) months; ora fine of more than P10,000.00, but not exceeding P20,000.00. (Request of Judge Nino Batingana, A.M. No. 05-8463-RTC, Feb. 17, 2010)
Q: Amion was charged with murder. During the trial, Judge Chiongson ordered that he be represented by counsel de oficio because Amions attorney is always postponing the trial for various reasons like illness and unavailability for trial. Amion then charged said judge with ignorance of the law and oppression because the fact that the counsel de officio did not know the particulars of the case meant that Amion would be denied due process. Should Judge Chiongson be disciplined? A: No. A judge should always be imbued with a high sense of duty and responsibility in the discharge of his obligation to promptly administer justice. Here, Judge Chiongson appointed a FLAG lawyer because of various dilatory means used by the complainant. Thus, the judge should be commended for his effort to expedite the case. (Amion v. Judge Chiongson, A.M. No. RTJ-971371, Jan. 22, 1999)
Note: A Flag lawyer refers to a lawyer of nongovernmental organizations (NGOs) and peoples organizations (POs) who by the nature of his work already render free legal aid to indigent and pauper litigants. (Section 4a(iii), BAR MATTER No. 2012, February 10, 2009)
Sec. 6, Canon 6, NCJC: Judges shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous in relation to litigants, witnesses, lawyers and others with whom the judge deals in an official capacity. Judges shall require similar conduct of legal representatives, court staff and others subject to their influence, direction or control.
Note: Besides possessing the requisite learning in the law, a magistrate must exhibit that hallmark judicial temperament of utmost sobriety and selfrestraint which are indispensable qualities of every judge. (Rodriguez v. Bonifacio, A.M. No. RTJ-99-1510, Nov. 6, 2000)
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Q: Judge Belen was charged with conduct unbecoming of a judge allegedly for humiliating, demeaning and berating a young lawyer who appeared in his sala. It was alleged that when the judge learned that the lawyer was an alumnus of MCQU and not of UP, the judge made the following statement youre not from UP. Then you cannot equate yourself to me because there is a saying and I know this, not all law students are created equal, not all law schools are created equal, not all lawyers are created equal despite what the Supreme Being stated that we all are created equal in His form and substance. Should the judge be disciplined? A: Yes. The judges sarcastic, humiliating, threatening and boastful remarks to a young lawyer are improper. A judge must be aware that an alumnus of a particular law school has no monopoly of knowledge of the law. By hurdling the Bar Examinations, taking of the Lawyers oath, and signing of the Roll of Attorneys, a lawyer is presumed to be competent to discharge his functions and duties as, inter alia, an officer of the court, irrespective of where he obtained his law degree. For a judge to determine the fitness or competence of a lawyer primarily on the basis of his alma mater is clearly an engagement in an argumentumad hominem. As a judge, he must address the merits of the case and not on the person of the counsel. Judges must be that even on the face of boorish behavior from those they deal with, they ought to conduct themselves in a manner befitting gentlemen and high officers of the court. (Atty. Mane v. Judge Belen, A.M. No. RTJ-08-2119, June 30, 2008) Q: Judge Ante Jr. was charged with conduct unbecoming of a judge. It was alleged that when the court employee placed the docket book on top of the filing cabinet, the same fell on the floor causing loud sound. Unexpectedly, the judge shouted saying why did you throw the docket book? You get out of here, punyeta, we dont need you! The judge also threw a monobloc chair at the court employee. Should the judge be disciplined? A: Yes. The judge, for shouting invectives and hitting complainant with a chair displayed a predisposition to use physical violence and intemperate language which reveals a marked lack of judicial temperament and self-restraint traits which, aside from the basic equipment of learning in the law - are indispensable qualities of every judge. (Briones v. Judge Ante Jr., A.M. No. MTJ-02-1411, Apr. 11, 2002)
Note: Respondent Judge was found guilty of serious misconduct and inefficiency by reason of habitual tardiness. He was fined and suspended for judicial indolence. (Yu-Asensi v. Villanueva A.M. No. MTJ-001245, January 2000)
Sec. 7, Canon 6, NCJC: Judges shall not engage in conduct incompatible with the diligent discharge of judicial duties. Q: What is the duty under this Section? A: A judge shall not accept duties that will interfere with his devotion to the expeditious and proper administration of his official functions
Note: When a judge, along with two other people, acted as real estate agents for the sale of a parcel of land for which he agreed to give a commission of P100,000 to each of his companions, and after the transaction was completed only gave the complainants P25,000 each, the high Court held that the judge violated the section of the prior Code of Judicial Conduct. (Catbagan v. Barte, A.M. No. MTJ02-1452, Apr. 6, 2005)
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right to a speedy disposition of their case and undermines the peoples faith in the judiciary. Indeed, justice delayed is justice denied (Angelia v. Grageda, A.M. No. RTJ-10-2220, February 7, 2011). Rule 1.02, Canon 1, CJC: A judge should administer justice impartially and without delay.
III. CODE OF JUDICIAL CONDUCT (1989)
Q: What is the applicability of this Code? A: This code applies suppletorily. CANON 1, CJC A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY.
Rule 1.01,Canon 1, CJC: A judge should be the embodiment of competence, integrity and independence. Q: A complaint was filed against respondent Judge Grageda for the delay in the resolution of motions relative to Civil Case No. 54-2001, entitled Pio Angelia v. Arnold Oghayan. Plaintiff Angelia averred that the case was filed way back on August 8, 2001. After numerous postponements, pre-trial was finally set on December 6, 2007. On December 20, 2007, counsel for complainant received an order dated December 6, 2007 dismissing the case for failure to prosecute. On December 28, 2007, Angelia filed a motion for reconsideration reasoning out that the failure to prosecute could not be attributed to him. On July 28, 2008, he filed his Urgent Motion for the Early Resolution of said December 2007 Motion for Reconsideration. He claimed that despite the lapse of a considerably long period of time, no action was taken by Judge Grageda. Is respondent Judge Gragela GUILTY of undue delay in resolving a motion in violation of Rule 1.02, Canon 1 and Rule 3.05, Canon 3 of the Code of Judicial Conduct? A: Yes. Failure to decide cases and other matters within the reglementary period constitutes gross inefficiency and warrants the imposition of administrative sanction against the erring magistrate. Such delay is clearly violative of the above-cited rules. Delay in resolving motions and incidents pending before a judge within the reglementary period of ninety (90) days fixed by the Constitution and the law is not excusable and constitutes gross inefficiency. As a trial judge, Judge Grageda was a frontline official of the judiciary and should have at all times acted with efficiency and with probity. Judges must decide cases and resolve matters with dispatch because any delay in the administration of justice deprives litigants of their
Rule 1.03, Canon 1, CJC: A judge should be vigilant against any attempt to subvert the independence of the judiciary and should forthwith resist any pressure from whatever source from whatever source intended to influence the performance of official functions. CANON 2, CJC A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITES
Rule 2.01, Canon 2, CJC: A judge should so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary. Q: Judge Canoy was charged with several counts of gross ignorance of the law and/or procedures, grave abuse of authority, and appearance of impropriety (Canon 2, Code of Judicial Conduct) for granting bail to Melgazo, the accused in a criminal case, without any application or petition for the grant of bail filed before his court or any court. He verbally ordered the branch clerk of court to accept the cash deposit as bail, to earmark an official receipt for the cash deposit, and to date it the following day. He did not require Melgazo to sign a written undertaking containing the conditions of the bail under Sec. 2, Rule 114 to be complied with by Melgazo. Thus, Judge Canoy ordered the police escorts to release Melgazo without any written order of release. Should respondent Judge Canoy be held administratively liable for violating of Supreme Court rules, directives and circulars under Sec. 9, Rule 140, RRC (as amended by A.M. No. 01-8-10-SC) ? A: Yes. Granting of bail without any application or petition to grant bail is a clear deviation from the procedure laid down in Sec. 17 of Rule 114.
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As regards the insistence of Judge Canoy that such may be considered as constructive bail, there is no such species of bail under the Rules. Despite the noblest of reasons, the Rules of Court may not be ignored at will and at random to the prejudice of the rights of another. Rules of procedure are intended to ensure the orderly administration of justice and the protection of substantive rights in judicial and extrajudicial proceedings. In this case, the reason of Judge Canoy is hardly persuasive enough to disregard the Rules. (Pantilo III v. Canoy, A.M. No. RTJ-112262, February 9, 2011) Rule 2.02, Canon 2,CJC: A judge should not seek Publicity for personal vainglory. and other identification purposes, it cannot be used with the intent to use the prestige of his judicial office to gainfully advance his personal, family or other pecuniary interests. Nor can the prestige of a judicial office be used or lent to advance the private interests of others, or to convey or permit others to convey the impression that they are in a special position to influence the judge. (Canon 2, Rule 2.03 of the Code of Judicial Conduct) To do any of these is to cross into the prohibited field of impropriety. (Belen v. Belen, A.M. No. RTJ-08-2139, August 9, 2010) Rule 2.04, Canon 2,CJC: A judge should refrain from influencing in any manner the the outcome of litigation or dispute pending before another court or administrative agency.
Rule 2.03, Canon 2,CJC: A judge shall not allow family, social, or other relationships to influence judicial conduct or judgment. The prestige of judicial office shall not be used or lent to advance the private interests of others, nor convey the impression that they are in a special position to influence the judge. Q: Judge Belen was charged with grave abuse of authority and conduct unbecoming a judge. He filed a complaint for Estafa against complainants father. However such was dismissed by the city prosecutor for lack of probable cause. After the dismissal of the complaint, Judge Belen started harassing and threatening the complainant with filing of several cases against the latter. He also wrote using his personal stationary, several letters addressed to certain local government authorities and employees, requesting information on complainants piggery and poultry business and advising them of the alleged violations by the complainant of the National Building Code and certain environmental laws. An administrative complaint was filed against the judge for violation of the New Code of Judicial Conduct on the ground that by using the letter head indicating his position as the Presiding Judge he was trying to use the prestige of his judicial office for his own personal interest. Is the judge liable? A: YES. While the use of the title is an official designation as well as an honor that an incumbent has earned, a line still has to be drawn based on the circumstances of the use of the appellation. While the title can be used for social
CANON 3, CJC A JUDGE SHOULD PERFOM OFFICIAL DUTIES HONESTLY, AND WITH IMPARTIALITY AND DILIGENCE
ADJUDICATIVE RESPONSIBILITIES
Rule 3.01, Canon 3,CJC: A judge shall be faithful to the law and maintain professional competence. Q. Plaintiff Conquilla was charged for direct assault after respondent Judge B conducted a preliminary investigation and found probable cause to hold the complainant for trial for the said crime. Complainant then filed an administrative complaint, alleging that under A.M. No. 05-08-[2]6-SC, first level court judges no longer have the authority to conduct preliminary investigations. Is the respondent judge guilty of gross ignorance of the law? A: Yes. When a law or a rule is basic, judges owe it to their office to simply apply the law. Anything less is gross ignorance of the law. Judges should exhibit more than just a cursory acquaintance with the statutes and procedural rules, and should be diligent in keeping abreast with developments in law and jurisprudence. It was therefore incumbent upon respondent judge to forward the records of the case to the Office of the Provincial Prosecutor for preliminary
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investigation, instead of conducting the preliminary investigation himself upon amendment of the law stripping the power of first level court judges to conduct preliminary investigation. (Conquilla v. Bernando, A.M. No. MTJ-09-1737, February 9, 2011) Rule 3.02, Canon 3, CJC: In every case, a judge shall endeavor diligently to ascertain the facts and the applicable law unswayed by partisan interests, public opinion or fear of criticism.
Note: A judge is expected to decide cases only on the basis of the applicable law on the matter, not on any other extraneous factors, such as public opinion, personal convictions and partisan interests (Lapena, 2009). prescribing the time within which certain acts must be done are indispensable to prevent needless delays in the orderly and speedy disposition of cases. Thus, the 90-day period is mandatory. (Re: Cases Submitted for Decision Before Hon. Teresito A. Andoy, A.M. No. 09-9-163-MTC, May 6, 2010) Note: The Court has repeatedly emphasized the need for judges to resolve their cases with dispatch. Delay does not only constitute a serious violation of the parties constitutional right to speedy disposition of cases, it also erodes the faith and confidence of the people in the judiciary, lowers its standards, and brings it into disrepute. (Office of the Court Administrator v. Quilatan, A.M. No. MTJ-09-1745, September 27, 2010)
Rule 3.03, Canon 3,CJC: A judge shall maintain order and proper decorum in the court.
Rule 3.06, Canon 3, CJC: While a judge may, to promote justice, prevent waste of time or clear up some obscurity, properly intervene in the presentation of evidence during the trial, it should always be borne in mind that undue interference may prevent the proper presentation of the cause or the ascertainment of truth. Rule 3.07, Canon 3; CJC: A judge should abstain from making public comments on any pending or impending case and should require similar restraint on the part of court personnel.
Rule 3.04, Canon 3,CJC: A judge should be patient, attentive, and courteous to lawyers, especially the inexperienced, to litigants, witnesses, and others appearing before the court. A judge should avoid unconsciously falling into the attitude of mind that the litigants are made for the courts, instead of the courts for the litigants. Q: How would you characterize the relationship between the judge and a lawyer? Explain A: The Code of Professional Responsibility requires lawyers to observe and maintain respect for judicial officers (Canon 11,CPR). On the other hand, the Code of Judicial Conduct requires judges to be patient, attentive and courteous to lawyers (Rule 3.03, CJC). In a word, lawyers and judges owe each other mutual respect and courtesy. (1996 Bar Question) Rule 3.05, Canon 3,CJC: A judge shall dispose of the courts business promptly and decide cases within the required periods.
Note: Article VIII, Section 15(1) of the 1987 Constitution mandates lower court judges to decide a case within the reglementary period of 90 days. The Code of Judicial Conduct under Rule 3.05 of Canon 3 likewise enunciates that judges should administer justice without delay and directs every judge to dispose of the courts business promptly within the period prescribed by law. Rules
ADMINISTRATIVE RESPONSIBILITIES
Rule 3.08, Canon 3,CJC: A judge should diligently discharge administrative responsibilities, maintain professional competence in court management, and facilitate the performance of the administrative functions or other judges and court personnel. Rule 3.09, Canon 3,CJC: A judge should organize and supervise the court personnel to ensure the prompt and efficient dispatch of business, and require at all times the observance of high standards of public service and fidelity.
Rule 3.10, Canon 3,CJC: A judge should take or initiate appropriate disciplinary measures against lawyers or court personnel for unprofessional conduct of which the judge may have become aware.
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A: There is no merit to the motion. Rule 3.12 of the CJC provides that a judge should take no part where the judges impartiality might reasonably be questioned. Among the instances for the disqualification of a judge is that he is related to a party litigant within the sixth degree or to counsel within the fourth degree of consanguinity or affinity. But this refers to counsel of the parties. As amicus, he represents no party to the case. There is, therefore, no ground to fear the loss of the judges impartiality in this case if his son is appointed amicus curiae. (1996 Bar Question) REMITTAL OF DISQUALIFICATION
Rule 3.11, Canon 3, CJC: A judge should appoint commissioners, receivers, trustees, guardians, administrators and others strictly on the basis of merit and qualifications, avoiding nepotism and favoritism. Unless otherwise allowed by law, the same criteria should be observed in recommending appointment of court counsel. Where the payment of compensation is allowed, it should be reasonable and commensurate with the fair value of services rendered.
DISQUALIFICATION Rule 3.12, Canon 3,CJC: A judge should take no part in a proceeding where the judges impartiality might reasonably be questioned. These cases include among others, proceedings where: The judge has personal knowledge of disputed evidentiary facts concerning the proceeding; b. The judge served as executor, administrator, guardian, trustee or lawyer in the case or matter in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein; c. The judges ruling in a lower court is the subject of review d. The judge is related by consanguinity or affinity to a party litigant within the sixth degree or to counsel within the fourth degree; e. The judge knows the judges spouse or child has a financial interest, as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in f. Controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding. In every instance, the judge shall indicate the legal reason for inhibition. Q: In a hearing before the Court of Tax Appeals, Atty. G was invited to appear as amicus curiae. One of the Judges hearing the tax case is the father of Atty. G. The counsel for the respondent moved for the inhibition of the judge in view of the father-son relationship. Is there merit to the motion? Decide. a.
Rule 3.13, Canon 3, CJC: A judge disqualified by the terms of rule 3.12 may, instead of withdrawing from the proceeding, disclose on the record the basis of disqualification. If, based on such disclosure the parties and lawyers independently of the judges participation, all agree in writing that the reason for the inhibition is immaterial or insubstantial, the judge may then participate in the proceeding. The agreement signed by the parties, shall be incorporated in the record of the proceeding.
CANON 4, CJC A JUDGE MAY, WITH DUE REGARD TO OFFICIAL DUTIES, ENGAGE IN ACTIVITIES TO IMPROVE THE LAW, THE LEGAL SYSTEM AND THE ADMINISTRATION OF JUSTICE.
Rule 4.01, Canon 4, CJC: A judge may, to the extent that the following activities do not impair the performance of judicial duties or cast doubt on the judges impartiality: a. Speak, write, lecture, teach of participate in activities concerning the law, the legal system and the administration of justice; b. Appear at a public hearing before a legislative or executive body on matters concerning the law, the legal system or the administration of justice and otherwise consult with them on matters concerning the administration of justice; c. Serve on any organization devoted to the improvement of the law, the legal system or the administration of justice.
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CANON 5, CJC A JUDGE SHOULD REGULATE EXTRAJUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH JUDICIAL DUTIES. (1995, 1997, 1999, 2000, 2002 Bar Question) 2. 3. Interfere with the proper performance of judicial activities; or Increase involvement with lawyers or persons likely to come before the court.
A judge should so manage investments and other financial interests as to minimize the number of cases giving grounds for disqualification. (Rule 5.02) Rule 5.03, Canon 5, CJC: Subject to the provisions of the proceeding rule, a judge may hold and manage investments but should not serve as officer, director, manager or advisor, or employee of any business except as director of a family business of the judge. Q: May a judge hold and manage an investment? A: Subject to the provisions of the preceding rule, GR: A judge may hold and manage investments but should not serve as: 1. An officer 2. Director 3. Manager 4. Advisor 5. Employee of any business XPN: As director of a family business of the judge. (Rule 5.03)
Note: A judge should regulate his extra-judicial activities so as to minimize the risk of conflict with judicial duties. ADVOCATIONAL, CIVIL AND CHARITABLE ACTIVITES
Rule 5.01, Canon 5, CJC: A judge may engage in the following activities provided that they do not interfere with the performance of judicial duties or detract from dignity of the court: a. b. Write, teach and speak on nonlegal subjects; Engage in the arts, sports, and other special recreational activities; Participate in civic and charitable activities; Serve as an officer, director, trustee, or non-legal advisor of non-profit or non-political, educational, religious, charitable, fraternal, or civic organization. FINANCIAL ACTIVITIES Rule 5.02, Canon 5, CJC: A judge shall refrain from financial and business dealing that tend to reflect adversely on the courts impartiality, interfere with the proper performance of judicial activities or increase involvement with lawyers or persons likely to come before the court. A judge should so manage investments and other financial interests as to minimize the number of cases giving grounds for disqualifications. Q: What is the rule regarding financial activities? A:A judge shall refrain from financial and business dealings that tend to: 1. Reflect adversely impartiality; on the courts
c. d.
Rule 5.04, Canon 5, CJC: A judge or any immediate member of the family shall not accept a gift, bequest, factor or loan from any one except as may be allowed by law.
Rule 5.05, Canon 5, CJC: No information acquired in judicial capacity shall be sued of disclosed by a judge in any financial dealing or for any other purpose not related to judicial activities.
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FIDUCIARY ACTIVITIES
PRACTICE OF LAW AND OTHER PROFESSION Rule 5.07, Canon 5, CJC: A judge shall not engage in the private practice of law. Unless prohibited by the Constitution or law, a judge may engage in the practice of any other profession provided that such practice will not conflict or tend to conflict with judicial functions.
Rule 5.06, Canon 5, CJC: A judge should not serve as the executor, administrator, trustee, guardian, or other fiduciary, except for the estate, trusts, or person of a member of the immediate family, and then only if such service will not interfere with the proper performance of judicial duties. Member of immediate family shall be limited to the spouse and relative within the second degree of consanguinity. As a family, a judge shall not: a. Serve in proceedings that might come before the court of said judge; or b. Act as such contrary to rule 5.02 to 5.05. Q: What is the rule regarding fiduciary activities? A: GR: A judge should not serve as; 1. Executor 2. Administrator 3. Trustee 4. Guardian 5. Other fiduciary XPN: For the: 1. Estate; 2. Trust; or 3. Person of a member of the immediate family. Provided, that such service shall not interfere with the proper performance of judicial office. (Rule 5.06) Q: As a family fiduciary, what should a judge refrain from doing? A: As a Family Fiduciary, a judge shall not: 1. 2. Serve in proceedings that might come before the court of said judge; or Act as such contrary to rules 5.02 and 5.05
FINANCIAL DISCLOSURE Rule 5.08, Canon 5, CJC: A judge shall make full financial disclosure as required by law. Q: What is the rule on financial disclosure? A: A judge shall make full financial disclosure as required by law. (Rule 5.08) EXTRAJUDICIAL APPOINTMENTS
Rule 5.09, Canon 5, CJC: A judge shall not accept appointment or designation to any agency performing quasi-judicial or administrative functions.
Note: The prohibition is based on Section 12, Article VIII of the Constitution, which provides that, The members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. Reason: The appointment to such positions will likely interfere with the performance of the judicial functions of a judge.
POLITICAL ACTIVITIES Rule 5.10, Canon 10, CJC: A judge is entitled to entertain personal views on political questions. But to avoid suspicion of political partisanship, a judge shall not make political speeches, contribute to party fund, publicly endorse candidates for political office or participate in other partisan political activities.
Note: What is prohibited is partisan political activity.
Note: Member of the immediate family shall be limited to the spouse and relatives within the second degree of consanguinity. The relationship mentioned is consanguinity not affinity.
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rather than promote the orderly administration of justice. (Ocenar v. .Judge Mabutin, A.M. No. MTJ 05158, Feb. 2005)
IV. DISCIPLINE OF MEMBERS OF THE JUDICIARY
A. DISCIPLINE OF THE MEMBERS OF THE SUPREME COURT Q: Who has the power to discipline members of the bench? A: 1. The Supreme Court has exclusive administrative supervision over all courts and its personnel. (Section 6, Art. VIII, 1986 Constitution) The Court en banc has the power to discipline all judges of lower courts including justices of the Court of Appeals. (Section 11, Art. VIII, 1986 Constitution)
B. DISCIPLINE OF LOWER COURT JUDGES AND JUSTICES

Note: The acts of a judge in his judicial capacity are not subject to disciplinary action. In the absence of fraud, malice or dishonesty in rendering the assailed decision or order, the remedy of the aggrieved party is to elevate the assailed decision or order to the higher court for review and correction. However, an inquiry into a judges civil, criminal and/or administrative liability may be made after the available remedies have been exhausted and decided with finality. (Republic v. Caguioa, A.M. No. RTJ-07-2063, June 26, 2009)
2.
Q: How are the proceedings for the discipline of judges instituted? A: Proceedings for the discipline of judges of regular and special courts and justices of the Court of Appeals and the Sandiganbayan may be instituted: 1. 2. Motu propio by the Supreme Court; Upon a verified complaint filed before the Supreme Court supported by: a. Affidavit of persons who have personal knowledge of the facts alleged therein; or Documents which may substantiate said allegations.
Q: May judges and justices be disbarred? A: Yes. Judges and justices, being lawyers, may also be disbarred, if found guilty of certain crimes and/or other causes for disbarment under the Rules of Court. Justices of the Supreme Court however may not be disbarred unless and until they shall have been first impeached in accordance with the Constitution.
b.
A. IMPEACHMENT
Q: What is the nature of impeachment proceedings against SC justices? A: Penal in nature governed by rules on criminal case. Q: What is the degree of proof required? A: Requires proof beyond reasonable doubt. Q: Who are subject to impeachment? A: Only SC Justices are subject to impeachment. 3.
Anonymous complaint supported by public records of indubitable integrity filed with the Supreme Court.
Q: What is the form of the complaint and what should it state? A: The complaint shall be in writing and shall state clearly and concisely the acts and omissions constituting violations of standards of conduct prescribed for judges by law, the Rules of Court, or the Code of Judicial Conduct. C. GROUNDS
Note: While it is the duty of the court to investigate and determine the truth behind every matter in complaints against judges and other court personnel, it is also their duty to see to it that they are protected and exonerated from baseless administrative charges. The Court will not shirk from its responsibility of imposing discipline upon its magistrates, but neither will it hesitate to shield them from unfounded suits that serve to disrupt
Q. What are the grounds for discipline of judges? A. 1. Serious Misconduct implies malice or wrongful intent, not mere error of judgment.
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Judicial acts complained of: a. Must be corrupt or inspired by an intention to violate the law; or b. Were in persistent disregard for wellknown legal rules.
Note: There is misconduct when there is reliable evidence showing that judicial actions are corrupt or inspired by intent to violate the law or in persistent disregard of legal rules. Note: Serious misconduct implies malice or a wrongful intent, not a mere error of judgment. For it to exist, there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law or were in persistent disregard of well-known legal rules.
complainants questioned both Orders for Release, alleging that the requirements for the bail bond had not been fulfilled and that the said judge had no jurisdiction to order the release. Is Judge Jovellanos guilty of gross incompetence and gross ignorance of the law? A: Yes. A judge should be acquainted with legal norms and precepts as well as with statutes and procedural rules. Unfamiliarity with the Rules of Court is a sign of incompetence. He must have the basic rules at the palm of his hands as he is expected to maintain professional competence at all times. Here, there are two defects in the Orders for Release signed by Judge Jovellanos. First, in both cases, the detainees had not registered the bailbond in accordance with the Rules of Criminal Procedure. One may not be given provisional liberty if the bailbond is not registered with the proper office. Secondly, Judge Jovellanos did not have jurisdiction to order the release of the detainees as the cases were not pending in his court and the suspects were not arrested within his jurisdiction. (Santiago v. Judge Jovellanos, A.M. No. MTJ-00-1289, Aug. 1, 2000)
Note: Judges are not expected to be infallible; not every error or irregularity committed by judges in the performance of official duties is subject to administrative sanction. In the absence of bad faith, fraud, dishonesty, or deliberate intent to do injustice, incorrect rulings do not constitute misconduct and may give rise to a charge of gross ignorance of the law. (Cruz v. Iturralde, A.M. No. MTJ-03-1775, April 30. 2003).
2.
Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence and circumspection which the law requires in the rendition of any public service.
Q: Should a judge be held administratively liable for ignorance of the law for granting bail to an accused in a criminal case without the requisite bail hearing, and despite the fact that there was an eyewitness to the murder who made a positive identification of the accused? A: Yes. It is already settled that when a judge grants bail to a person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment without conducting the required bail hearing, he is considered guilty of ignorance or incompetence the gravity of which cannot be excused by a claim of good faith or excusable negligence. When a judge displays an utter unfamiliarity with the law and the rules, he erodes the confidence of the public in the courts. A judge owes the public and the court the duty to be proficient in the law and is expected to keep abreast of laws and the prevailing jurisprudence. Ignorance of the law by a judge can easily be the mainspring of injustice.(Grageda v. Judge Tresvalles, A.M. MTJ No. 04-1526, Feb. 2, 2004) Q: Santiago and Sanchez were complainants in two different criminal cases before the MTC of Bulacan and the RTC of Pampanga respectively. The suspects in each of the criminal cases were caught and detained by authorities. However, both suspects were released by order of Judge Jovellanos of MCTC Pangasinan. The
Q: Cruz was the defendant in an ejectment case filed by the Province of Bulacan involving a parcel of land owned by the said province. A decision was rendered against Cruz. He then filed an appeal and several motions for reconsideration but all were subsequently denied by Justice Alino-Hormachuelos before whom the motions were filed. Consequently, Cruz charged all the judges and justices with grave misconduct, gross inexcusable negligence, and rendering a void judgment. Should the judges be held liable for grave misconduct and gross ignorance of the law? A: No. The Court has consistently held that judges will not be held administratively liable for mere errors of judgment in their rulings or decisions absent a showing of malice or gross ignorance on their part. Bad faith or malice cannot be inferred simply because the judgment is adverse to a party. To hold a judge administratively accountable for every erroneous ruling or decision he renders, assuming that he has erred,
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would be nothing short of harassment and would make his position unbearable. Here, the fact that the judge or justices rendered a decision not favorable to Cruz is not enough to make them liable for grave misconduct. (Cruz v. Justice AlinoHormachuelos et. al., A.M. No. CA-04-38, Mar. 31, 2004) Q: Judge Caguioa cited attorney X in direct contempt for allegedly using disrespectful language in his pleadings, and directed the latters arrest. Thereafter, the judge denied Atty. X request to allow him to post a bond for his provisional liberty. Atty. X now charged Judge Caguioa of gross ignorance of law for denying his request. Is the judge guilty of gross ignorance of law? A: Yes. When the law violated is so elementary, as in this case, where there is a rule which provides for the procedure to be followed in case of contempt, for a judge not to know or to act as if he does not know it constitutes gross ignorance. The judges act therefore of denying the request to post a bond despite the presence of a rule allowing such constitutes gross ignorance of the law. (Dantes v. Caguioa, A.M. No. RTJ-05-1919, June 27, 2005)
Note: Resort to administrative sanction is an exceptional remedy. The normal course of action is to correct the errors or irregularities in the application of law by the judge by way of motion for reconsideration, or where appropriate under the rules of procedure, motion for new trial or special civil action of certiorari, prohibition or mandamus. An administrative case against the judge would not lie, even if the actions were perceived to have gone beyond the norms of propriety, where a sufficient judicial remedy exists. With much less reason could an administrative case against the judge be a vehicle to correct possible mistakes of ones counsel. (Dadizon v. Judge Asis, A.M. No. RTJ-03-1760, January 15, 2004)
spoken with finality that the door to an inquiry into his criminal, civil, or administrative liability may be said to have opened, or closed. (Maquiran v. Grageda, A.M. No. RTJ-04-1888, Feb. 11, 2005) Q: Santiagos Petition for Reconstitution of Lost/Destroyed Original Certificate of Title was granted by the Quezon City RTC. The Republic of the Philippines through the Office of the Solicitor General appealed the decision to the Court of Appeals the case of which was raffled to the Division where Justice Enriquez was Chairperson. The special division reversed and set aside the Decision of the Quezon City RTC. Motion for Reconsideration having been denied, complainant filed the present complaint before the SC. Pending the decision of the SC, an administrative charge of Gross Ignorance of the law/Gross Incompetence was filed against respondent Associate Enriquez. Is the filing of the administrative complaint against him proper? A: No. The remedy of the aggrieved party is not to file an administrative complaint against the judge, but to elevate the assailed decision or order to the higher court for review and correction. An administrative complaint is not an appropriate remedy where judicial recourse is still available, such as a motion for reconsideration, an appeal, or a petition for certiorari, unless the assailed order or decision is tainted with fraud, malice, or dishonesty. The failure to interpret the law or to properly appreciate the evidence presented does not necessarily render a judge administratively liable. A judicial officer cannot be called to account in a civil action for acts done by him in the exercise of his judicial function, however erroneous. In the words of Alzua and Arnalot v. Johnson, it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself." This concept of judicial immunity rests upon consideration of public policy, its purpose being to preserve the integrity and independence of the judiciary. This principle is of universal application and applies to all grades of judicial officers from the highest judge of the nation and to the lowest officer who sits as a court. (Santiago III v. Justice Enriquez, Jr. A.M. No. CA-09-47-J, February 13, 2009)
Q: Is a disciplinary and criminal action against a judge a substitute for judicial remedies? A: Disciplinary and criminal actions against a judge, are not complementary or suppletory of, nor a substitute for, judicial remedies, whether ordinary or extraordinary. Resort to and exhaustion of judicial remedies are prerequisites for the taking of other measures against the persons of the judges concerned, whether of civil, administrative, or criminal nature. It is only after the available judicial remedies have been exhausted and the appellate tribunals have
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Q: What are the classifications of charges? A: Administrative charges are classified as: 1. Serious 2. Less serious 3. Light. Q: What are considered as serious charges? A: 1. 2. Bribery, direct or indirect; Dishonesty and violations of the Anti-Graft and Corrupt Practices Law; (R.A. 3019) 3. Gross misconduct constituting violations of the Code of Judicial Conduct 4. Knowingly rendering an unjust judgment or order as determined by a competent court in an appropriate proceeding 5. Conviction of a crime involving moral turpitude 6. Willful failure to pay a just debt 7. Borrowing money or property from lawyers and litigants in a case pending before the court 8. Immorality 9. Gross ignorance of the law or procedure 10. Partisan political activities 11. Alcoholism and/or vicious habits Q: What are considered as less serious charges? A: 1. Undue delay in rendering a decision or order, or in transmitting the records of a case Frequently and unjustified absences without leave or habitual tardiness Unauthorized practice of law Violation of Supreme Court rules, directives, and circulars Receiving additional or double compensation unless specifically authorized by law Untruthful statements in the certificate of service Simple misconduct Q: Are the confidential? proceedings against them
A: Proceedings against judges of regular and special courts and justices of the Court of Appeals and the Sandiganbayan shall be private and confidential, but a copy of the decision or resolution of the Court shall be attached to the record of the respondent in the Office of the Court Administrator. (Sec 12, Rule 140,RRC) Q: What is the effect of resignation or retirement of a judge when there is a pending administrative case against him? A: The retirement of a judge or any judicial officer from service does not preclude the finding of any administrative liability to which he should still be answerable. Also, the withdrawal or recantation of the complaint does not necessarily result in the dismissal of the case. (Atty. Molina v. Judge Paz, A.M. No. RTJ -01-1638, December 8, 2003)
Note: The acceptance by the President of the resignation does not necessarily render the case moot or deprive the SC of the authority to investigate the charges. The court retains its jurisdiction either to pronounce the respondent official innocent of the charges or declare him guilty thereof. A contrary rule will be fraught with injustice and pregnant with dreadful and dangerous implications (Pesole v. Rodriguez A.M. No. 755-MTJ, January 31, 1978)
2. 3. 4. 5.
Q:May the heirs of a judge who was found guilty of gross neglect of duty and dismissed from the service with disqualification from holding public office for an offense committed before he was appointed judge, be entitled to gratuity benefits? A: Yes. Upon demise, the administrative complaint of the OCA had to be considered closed and terminated. Therefore, there is no valid reason why the heirs of the deceased should not be entitled to gratuity benefits for the period he rendered service as MTCC judge up to the finality of the CSC Resolution which imposed the penalty of "dismissal from service with all the accessory penalties including disqualification from holding public office and forfeiture of benefits. The penalty of disqualification from holding public office and forfeiture of benefits may not be applied retroactively, however, the judge should be considered terminated from service in the judiciary as his appointment as MTCC judge is deemed conditional upon his exoneration of the CSC administrative charges against him. (Re:
6. 7.
Q: What are considered as light charges? A: 1. 2. 3. 4. Vulgar and unbecoming conduct Gambling in public Fraternizing with lawyers and litigants with pending case/cases in his court Undue delay in the submission of monthly reports
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Application for retirement/gratuity benefits under R.A. 910 as amended by R.A. 5095 and P.D. 1438 filed by Mrs. Butacan, surviving spouse of the late Hon. Jimmy Butacan, former judge of MTC, Tuguegarao City, who died on July 28, 2005,A.M. No. 12535-Ret, Apr. 22, 2008) Q: What is the quantum of evidence required for the removal of a judicial officer? A: The ground for removal of a judicial officer should be established beyond reasonable doubt. Such is the rule where the charge on which the removal is sought is misconduct in office, willful neglect, corruption or incompetence. The general rules in regard to admissibility of evidence in criminal trials apply.
Note: For liability to attach, the assailed order, decision or actuation of the judge in the performance of official duties must not only found to be erroneous but, most importantly, it must be established that he was moved by bad faith, dishonesty, hatred or some other like motive. Similarly, a judge will be held administratively liable for rendering an unjust judgment one which is contrary to law or jurisprudence or is not supported by evidence - when he acts in bad faith, malice, revenge or some other similar motive. In other words, in order to hold a judge liable for knowingly rendering an unjust judgment, it must be shown beyond reasonable doubt that the judgment was made with a conscious and deliberate intent to do an injustice. (Judge De Guzman v Dy A.M. No. RTJ1755, July 3, 2003) merely dispenses with the procedure laid down in Rule 140, RRC. (Aguirre, 2006)
Q: In Administrative Circular No. 1 addressed to all lower courts dated January 28, 1988, the Supreme Court stressed: All judges are reminded that the Supreme Court has applied the Res Ipsa Loquitor rule in the removal of judges even without any formal investigation whenever a decision, on its face, indicates gross incompetence or gross ignorance of the law or gross misconduct (Cathay Pacific Airways v. Romillo, G.R. No. 64276, 12 August 1986) The application of the res ipsa loquitor rule in the removal of judges is assailed in various quarters as inconsistent with due process and fair play. Is there any basis for such a reaction? Explain. A: 1. First view - there is a basis for the reaction against the res ipsa loquitor rule on removing judges. According to the position taken by the Philippine Bar Association, the res ipsa loquitor rule might violate the principle of due process that is the right to be heard before one is condemned. Moreover, Rule 140 of the Rules of Court provides for the procedure for the removal of judges. Upon service of the complaint against him, he is entitled to file an answer. If the answer merits a hearing, it is referred to a justice of the Court of Appeals for investigation, the report of the investigation is submitted to the Supreme Court for proper disposition. The danger in applying the res ipsa loquitor rule is that the judge may have committed only an error of judgment. His outright dismissal does violence to the jurisprudence set in (In Re Horilleno, 43 Phil. 212, March 20, 1922) 2. Second view- According to the Supreme Court the lawyer or a judge can be suspended or dismissed based in his activities or decision, as long as he has been given an opportunity to explain his side. No investigation is necessary. Q: Does suspension pendente lite apply to judges? A: No. While it is true that preventive suspension pendente lite does not violate the right of the accused to be presumed innocent as the same is
Q: May a judge be disciplined by the Supreme Court based solely on a complaint filed by the complainant and the answer of respondent judge? If so, under what circumstances? What is the rationale behind this power of the Supreme Court? A: A judge may be disciplined by the Supreme Court based solely on the basis of the complaint filed by the complainant and the answer of the respondent judge, under the principle of res ipsa loquitor. The Supreme Court has held that when the facts alleged in the complaint are admitted or are already shown on the record, and no credible explanation that would negate the strong inference of evil intent is forthcoming, no further hearing to establish such facts to support a judgment as to culpability of the respondent is necessary (In Re: Petition for dismissal of Judge Dizon). (1996 Bar Question)
Note: The doctrine of res ipsa loquitur does not and cannot dispense with the twin requirements of due process, notice and the opportunity to be heard. It
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not a penalty, the rules on preventive suspension of judges, not having been expressly included in the Rules of Court, are amorphous at best. Moreover, it is established that any administrative complaint leveled against a judge must always be examined with a discriminating eye, for its consequential effects are, by their nature, highly penal, such that the respondent judge stands to face the sanction of dismissal or disbarment. As aforementioned, the filing of criminal cases against judges may be used as tools to harass them and may in the long run create adverse consequences. (Re: Conviction of Judge Adoracion G. Angeles, A.M. No. 06-9-545-RTC, Jan. 31, 2008) Q: May justices and judges be investigated under the grievance procedure in the RRC? A: No. Complaints against justices and judges are filed with the Supreme Court which has exclusive administrative supervision over all courts and the personnel thereof pursuant to Section 6 Art. VIII, Constitution. The Court en banc has the power to discipline all judges of lower courts including justices of the Court of Appeals (Section 11, Art. VIII, 1987 Constitution) As a matter of practice, the Supreme Court has assigned complaints against Municipal or Metropolitan Trial Judges to an Executive Judge of a Regional Trial Court and complaints against judges of Regional Trial Courts to a justice of the Court of Appeals, while a complaint against a member of the Court of Appeals would probably be assigned to a member of the Supreme Court for investigation, report and recommendation. Retired SC Justices are now tasked for this purpose. Q: What is the rule on the liability of judges? A: GR: A judge is not liable administratively, civilly, or criminally, when he acts within his legal powers and jurisdiction, even though such acts are erroneous so long as he acts in good faith. In such a case, the remedy of aggrieved party is not to file an administrative complaint against the judge but to elevate the error to a higher court for review and correction. Reason: To free the judge from apprehension of personal consequences to himself and to preserve the integrity and independence of the judiciary. XPN: Where an error is gross or patent, deliberate and malicious, or is incurred with evident bad faith; or when there is fraud, dishonesty, or corruption. Q: What are the civil liabilities under the civil code? A: 1. Article 27 refusal or neglect without just cause by a public servant to perform his official duty. Article 32 directly or indirectly obstructing, defeating, violating or in any manner impeding or impairing civil liberties guaranteed by the Constitution. This responsibility for damages is not, however, demandable of judges except when his act or omission constitutes a violation of the Penal Code or other penal statute. Q: What are the disabilities/restrictions under the Civil Code? A: 1. Article 1491 (5) Justices, judges, prosecuting attorneys, clerks of court of superior and inferior courts and other officers and employees connected with the administration of justice cannot acquire by purchase, even at a public or judicial action, either in person or through the mediation of another the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions. This prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession. (1996 Bar Question) 2. Article 739 Donations made to a judge, his wife, descendants and ascendants by reason of his office are void.
2.
Q: What are the Criminal Liabilities under the RPC and the Anti-Graft and Corrupt Practices Act?
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A: 1. Misfeasance a. Article 204 Knowingly rendering unjust judgment. b. Manifestly Unjust Judgment one which is so patently against the law, public order, public policy and good morals that a person of ordinary discernment can easily sense its invalidity and injustice. 2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months A fine of more than P20,000.00 but not exceeding P40,000.00
3.
Q: What are the sanctions if the respondent is found guilty of a less serious charge? A:
Note: It must be shown beyond doubt that the judgment is unjust as it is contrary to law or is not supported by evidence and the same was made with conscious and deliberate intent to do an injustice. (In Re: Climaco, A.C. No. 134-J, January 21, 1974) If the decision rendered by the judge is still on appeal, the judge cannot be disqualified on the ground of knowingly rendering an unjust judgment. (Abad v. Bleza, A.M. No. R-227-RTJ, October 13, 1986)
1.
Suspension from office without salary and other benefits for not less than one (1) nor more than three (3) months; or A fine of more than P10,000.00 but not exceeding P20,000.00.
2.
2.
Article 205 Judgment rendered through negligence committed by reason of inexcusable negligence or ignorance.
Note: The failure of a judge to decide even a single case within the 90-day period was considered gross inefficiency warranting the imposition of fine equivalent to his 1 month salary. (In Re: Judge Danilo Tenerife, A.M. No. 94-5-42-MTC, Mar. 1996)
Q: What are the sanctions if the respondent is found guilty of a light charge? A: Any of the following sanctions shall be imposed: 1. 2. 3. 4. A fine of not less than P1,000.00 but not exceeding P10,000.00 and/or Censure Reprimand Admonition with warning
Note: Negligence and ignorance are inexcusable if they imply a manifest injustice, which cannot be explained by reasonable interpretation (In Re: Climaco).
3.
Article 206 Knowingly rendering an unjust interlocutory order; and Maliciously delaying the administration of justice.
4.
Note: The act must be committed maliciously with deliberate intent to prejudice a party in a case.
E. REINSTATEMENT OF A JUDGE PREVIOUSLY DISCIPLINED Q: When is reinstatement proper?
D. SANCTIONS IMPOSED BY THE SUPREME COURT ON ERRING MEMBERS OF THE JUDICIARY Q: What are the sanctions if the judge is found guilty of a serious charge? A: Any of the following sanctions may be imposed: 1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including governmentowned or controlled corporations. Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits
A: Reinstatement is proper when there is no indication that the judge is inspired by corrupt motives or reprehensive purpose in the performance of his functions. Q: What are the factors to be considered in reinstatement? A: 1. 2. 3. 4. Unsullied name and service of record prior to dismissal Commitment to avoid situation that spur suspicion of arbitrary conditions Complainant mellowed down in pushing from his removal Length of time separated from service
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PROCEDURE FOR DISCIPLINE OF JUDGES OF REGULAR AND SPECIAL COURTS. AND JUSTICES. OF THE COURT OF APPEALS AND THE SANDIGANBAYAN. (A.M. NO. 01-8-10-SC). (2005 Bar Question).
If the complaint is sufficient in form and substance, a copy thereof shall be served upon the respondent and he shall be required to comment within 10 days from date of service.
If the complaint is not sufficient in form and substance, the same shall be dismissed.
Upon the filing of the respondents comment or upon the expiration of the time for filing the same and unless other pleadings or documents are required, the Supreme Court shall refer the matter to:
Office of the Court Administrator for evaluation, report, and recommendation
The investigating justice or judge shall set a day of the HEARING and send notice thereof to both parties. At such hearing the parties may present oral and documentary evidence. If, after due notice, the respondent fails to appear, the investigation shall proceed ex parte. The investigating justice or judge shall terminate the investigation within ninety (90) days from the date of its commencement or within such extension as the Supreme Court may grant.
Or assign the case for investigation, report, and recommendation to a retired member of the Supreme Court, if the respondent is a justice of the CA and the Sandiganbayan
Or to a justice of the CA, if the respondent is a judge of a Regional Trial Court or of a special court of equivalent rank
Or to a judge of the Regional Trial Court if the respondent is a judge of an inferior court.
The Court shall take such ACTION on the report as the facts and the law may warrant.
Within thirty (30) days from the termination of the investigation, the investigating Justice or Judge shall submit to the Supreme Court a REPORT containing findings of fact and recommendation. The report shall be accompanied by the record containing the evidence and the pleadings filed by the parties. The report shall be confidential and shall be for the exclusive use of the Court.
Note: Before the Court approved this resolution, administrative and disbarment cases against members of the bar who were likewise members of the court were treated separately. However, pursuant to the new rule, an administrative case against a judge of a regular court based on grounds which are also grounds for the disciplinary action against members of the Bar shall be automatically considered as disciplinary proceedings against such judge as a member of the Bar. Since membership in the bar is an integral qualification for membership in the bench, the moral fitness of a judge also reflects his moral fitness as a lawyer. A judge who disobeys the basic rules of judicial conduct also violates his oath as a lawyer. (Samson v. Judge Caballero, A.M. No. RTJ-08-2138 ,Aug. 5, 2009)
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UST Golden Notes 2011 - Legal Ethics

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Legal Ethics - practice of law

Q: What constitutes practice of law?

Bench refers to the whole body of judges.

Legal Ethics - practice of law